HARRIS, CLEOPHIS, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
826
KA 14-02057
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CLEOPHIS HARRIS, DEFENDANT-APPELLANT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.
PATRICK E. SWANSON, ACTING DISTRICT ATTORNEY, MAYVILLE (LYNN S.
SCHAFFER OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered July 14, 2014. The judgment convicted defendant,
upon his plea of guilty, of criminal sale of a controlled substance in
the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of criminal sale of a controlled substance in
the third degree (Penal Law § 220.39 [1]). Contrary to defendant’s
contention, County Court did not ignore his oral motion to withdraw
his plea or fail to set forth for judicial review any decision with
respect thereto. Instead, the court explicitly and properly denied
defendant’s oral motion to withdraw the plea based upon the absence of
any record support for defendant’s conclusory assertion that his
guilty plea had been coerced (see People v Allen, 99 AD3d 1252, 1252).
Furthermore, the court accorded defendant a reasonable opportunity to
present his contentions and did not “abuse its discretion in
concluding that no further inquiry was necessary” (People v Strasser,
83 AD3d 1411, 1411; cf. People v Days, 125 AD3d 1508, 1508-1509).
Contrary to his further contention, defendant was not “deprived
of effective assistance of counsel at sentencing based on his
attorney’s refusal to incorporate the arguments raised by defendant at
sentencing into [a] written motion to withdraw defendant’s plea”
(People v Green, 132 AD3d 1268, 1269, lv denied 27 NY3d 1069).
Furthermore, “defense counsel’s failure to join in [defendant’s oral]
motion did not constitute ineffective assistance” (People v Weinstock,
-2- 826
KA 14-02057
129 AD3d 1663, 1664, lv denied 26 NY3d 1012).
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court