CROCKETT, MICHAEL, PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1308
KA 12-01677
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MICHAEL CROCKETT, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C.
RUSSO-MCLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), entered July 26, 2012 pursuant to the 2005 Drug
Law Reform Act. The order denied the application of defendant for
resentencing upon his conviction of criminal possession of a
controlled substance in the first degree, criminal possession of a
controlled substance in the third degree, criminal possession of a
weapon in the third degree, criminal use of drug paraphernalia in the
second degree and criminal possession of a weapon in the fourth
degree.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from an order denying his
application for resentencing under the 2005 Drug Law Reform Act ([2005
DLRA] L 2005, ch 643, § 1), which authorizes the discretionary
resentencing of certain class A-II drug offenders. We reject
defendant’s contention that he was deprived of effective assistance of
counsel because his attorney failed to notify the Attorney General of
his challenge to the constitutionality of the 2005 DLRA. It is well
established that the right to effective assistance of counsel in New
York is “violated if a defendant’s counsel fails to meet a minimum
standard of effectiveness, and defendant suffers prejudice from that
failure” (People v Turner, 5 NY3d 476, 479 [emphasis added]). Here,
although defense counsel should have notified the Attorney General of
defendant’s challenge to the constitutionality of a state statute (see
Executive Law § 71), Supreme Court did not deny defendant’s motion on
that basis. Instead, the court ruled on the merits of defendant’s
contention, determining that the statute is constitutional. Thus,
defendant was not prejudiced by his attorney’s failure to notify the
Attorney General, and defense counsel was not ineffective as a result
of that single error (see generally People v Rogers, 277 AD2d 876,
-2- 1308
KA 12-01677
877, lv denied 96 NY2d 834). Because defendant does not contend on
appeal that the court erred in determining that the statute is
constitutional, we do not address that issue.
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court