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People v. Jones

Supreme Court of New York, Third Department

February 27, 2014

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DEVON JONES, Appellant.

Calendar Date: January 14, 2014

Barrett D. Mack, Valatie, for appellant.

D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), for respondent.

Before: Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

MEMORANDUM AND ORDER

Garry, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 21, 2011, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree and robbery in the first degree.

In May 2009, a violent home invasion took place in Ulster County, followed several days later by another violent home invasion in Orange County. In a statement to police, defendant admitted that he lost a semi-automatic pistol while participating in the Orange County invasion. DNA evidence recovered from a pistol found at the scene linked him to the Ulster County invasion. An Ulster County grand jury charged him by superseding indictment with burglary in the first degree (three counts), robbery in the first degree (two counts), criminal use of a firearm in the first degree and assault in the second degree (two counts). He pleaded guilty to burglary in the first degree and robbery in the first degree in full satisfaction of the indictment and was sentenced to two concurrent 25-year prison terms, each followed by five years of postrelease supervision, to be served concurrently with the prison term imposed upon him for his Orange County conviction. Defendant appeals.

Defendant's claim that his guilty plea was involuntary in that it was coerced by County Court's alleged threat to sentence him illegally is unpreserved, as he withdrew his motion to withdraw his plea, and the record does not reveal that he moved to vacate the judgment of conviction (see People v Carpenter, 93 A.D.3d 950, 952 [2012], lv denied 19 N.Y.3d 863 [2012]; People v Terenzi, 57 A.D.3d 1228, 1229 [2008], lv denied 12 N.Y.3d 822 [2009]) [1]. The narrow exception to the preservation rule is not implicated, as he made no statements during the plea allocution that were inconsistent with his guilt or negated any elements of the crimes to which he pleaded guilty (see People v Leone, 101 A.D.3d 1352, 1352-1353 [2012], lv denied 12 N.Y.3d 913 [2013]). Had the claim been preserved, we would have found it unsupported by the record.

Defendant next contends that he received the ineffective assistance of counsel in that his attorney did not move to suppress his statement regarding the Orange County incident, allegedly forcing him to plead guilty, and then failed to obtain a favorable plea agreement. To the extent that they implicate the plea bargaining process, these claims are not waived by defendant's guilty plea (see People v Mercer, 81 A.D.3d 1159, 1160 [2011], lv denied 19 N.Y.3d 999 [2012]), but they are nevertheless unpreserved, for the reasons discussed above (see People v Feliciano, 108 A.D.3d 880, 881 [2013]). In any event, we would have found no lack of meaningful representation. Defendant's counsel negotiated a favorable agreement for a prison term running concurrently to the Orange County sentence rather than consecutively (see Penal Law §§ 70.25 [2], [4]; 70.30 [1] [e] [iv]), and failure to make a single pretrial motion, or a motion with little chance of success, does not establish ineffective assistance (see People v Caban, 5 N.Y.3d 143, 152 [2005]; People v Gentry, 73 A.D.3d 1383, 1384 [2010]). [2]

Defendant's sentence was not harsh or excessive. As previously noted, his sentence could have been imposed consecutively; County Court stated that it would have preferred a longer sentence but was imposing the sentence requested by the victims, who did not wish to relive at trial the traumatic experience of the home invasion. In view of defendant's inconsistent expressions of responsibility and remorse, his criminal history, and the violence of his offense - during which two victims were pistol-whipped and seriously injured while a three-year-old child was nearby - we find no abuse of discretion or extraordinary circumstances warranting modification in the interest of justice (see People v Cancer, 16 A.D.3d 835, 840 [2005], lv denied 5 N.Y.3d 826 [2005]).

Lahtinen, J.P., McCarthy and Rose, JJ., concur.

ORDERED that the judgment is affirmed.


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