People v. McDermott

Appellate Division of the Supreme Court of New York

People v. McDermott

133 A.D.2d 931, 520 N.Y.S.2d 646, 1987 N.Y. App. Div. LEXIS 51976

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 22, 1987

StatusPublished

This text of 133 A.D.2d 931 (People v. McDermott) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McDermott, 133 A.D.2d 931, 520 N.Y.S.2d 646, 1987 N.Y. App. Div. LEXIS 51976 (N.Y. Ct. App. 1987).

Pincite

Opinion

Mahoney, P. J.

Appeal from a judgment of the County Court of Chemung County (Danaher, Jr., J.), rendered August 12, 1985, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant, then an inmate at Elmira Correctional Facility, was charged with promoting prison contraband in the first degree based on allegations that he possessed a homemade weapon. He pleaded guilty to a reduced charge of attempted promoting prison contraband in the first degree. Defendant now appeals.

Defendant’s guilty plea operates as a waiver of his claim that the failure to file with the Secretary of State the standards of inmate behavior, which prohibited possession of the homemade weapon, rendered the indictment defective (see, People v Motley, 69 NY2d 870). Further, defendant’s claim that he was denied the effective assistance of counsel since his attorney failed to move, prior to the guilty plea, for dismissal of the indictment on this ground is without merit. This court has already rejected this argument on the merits (People v Rodriguez, 126 AD2d 896; People v Simms, 124 AD2d 349). Thus, the failure to raise the issue did not prejudice defendant.

Judgment affirmed. Mahoney, P. J., Kane, Weiss, Mikoll and Harvey, JJ., concur.

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Mahoney, P. J.

Appeal from a judgment of the County Court of Chemung County (Danaher, Jr., J.), rendered August 12, 1985, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant, then an inmate at Elmira Correctional Facility, was charged with promoting prison contraband in the first degree based on allegations that he possessed a homemade weapon. He pleaded guilty to a reduced charge of attempted promoting prison contraband in the first degree. Defendant now appeals.

Defendant’s guilty plea operates as a waiver of his claim that the failure to file with the Secretary of State the standards of inmate behavior, which prohibited possession of the homemade weapon, rendered the indictment defective (see, People v Motley, 69 NY2d 870). Further, defendant’s claim that he was denied the effective assistance of counsel since his attorney failed to move, prior to the guilty plea, for dismissal of the indictment on this ground is without merit. This court has already rejected this argument on the merits (People v Rodriguez, 126 AD2d 896; People v Simms, 124 AD2d 349). Thus, the failure to raise the issue did not prejudice defendant.

Judgment affirmed. Mahoney, P. J., Kane, Weiss, Mikoll and Harvey, JJ., concur.

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Bluebook (online)

133 A.D.2d 931, 520 N.Y.S.2d 646, 1987 N.Y. App. Div. LEXIS 51976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcdermott-nyappdiv-1987.

Opinion

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