People v Russell |
2016 NY Slip Op 07059 [143 AD3d 1188] |
October 27, 2016 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York, Respondent, v Franklin Russell, Also Known as Nitty, Appellant. |
Keeley A. Maloney, Albany, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Matthew B. Keller of counsel), for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 10, 2013, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.
Defendant and 51 codefendants were charged in a 261-count indictment with various
crimes related to a conspiracy to distribute and sell cocaine and heroin in multiple
counties within New York and also in Vermont. Five of those counts encompassed
crimes allegedly committed by defendant. In satisfaction thereof, defendant pleaded
guilty to attempted criminal possession of a controlled substance in the third degree and
waived his right to appeal, both orally and in writing. Under the terms of the plea
agreement, he was to be sentenced to [*2]4
Initially, defendant contends that County Court improperly enhanced his sentence because he was not expressly advised that the terms of the plea agreement included him having to testify against his codefendant. Although not precluded by his waiver of the right to appeal, defendant has failed to preserve this claim as the record does not reveal that he raised it before County Court or made an appropriate postallocution motion (see People v Bucknor, 116 AD3d 1233, 1234 [2014]). Under the circumstances presented, we decline to exercise our interest of justice jurisdiction to take corrective action inasmuch as the plea agreement that was articulated on the record required defendant's ongoing cooperation in prosecuting this specific codefendant, which sufficiently encompassed the provision of testimony (compare People v Gabbidon, 96 AD3d 1235, 1235-1236 [2012]; People v Hastings, 24 AD3d 954, 955 [2005]).
Defendant further asserts that he was deprived of the effective assistance of counsel because his trial counsel failed to make a motion to withdraw his guilty plea based upon the improper enhancement of his sentence. However, given the clear terms of the plea agreement, such motion would have been futile. The failure to pursue a motion that "has little or no chance of success" is not a basis for finding that counsel was ineffective (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marks and citation omitted]; see People v Thiel, 134 AD3d 1237, 1240 [2015], lv denied 27 NY3d 1156 [2016]).
Lastly, defendant's challenge to the severity of the sentence is precluded by his valid waiver of the right to appeal (see People v Scott, 139 AD3d 1266 [2016], lv denied 27 NY3d 1155 [2016]; People v Briggs, 138 AD3d 1355, 1357 [2016], lv denied 28 NY3d 927 [2016]).
Peters, P.J., Garry, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.