People v. Wester

82 A.D.3d 1677, 919 N.Y.2d 417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2011
• Status: Published

Opinion

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of kidnapping in the second degree (Penal Law § 135.20) and assault in the second degree (§ 120.05 [2]). We reject defendant’s contention that his attorney became a witness against him and that he was thereby denied effective assistance of counsel. Contrary to defendant’s contention, the statements of defense counsel in response to defendant’s pro se motion to withdraw his guilty plea were not adverse to defendant (see People v Guerra-Pena, 46 AD3d 1469 [2007], lv denied 10 NY3d 765 [2008]). In any event, even if defendant is correct that the statements were adverse to him, the record conclusively establishes that Supreme Court’s “rejection of [the] motion was not influenced by” those statements (People v Nawabi, 265 AD2d 156 [1999], lv denied 94 NY2d 865 [1999]). We also reject defendant’s contention that he was denied effective assistance of counsel based on defense counsel’s failure to make any arguments on defendant’s behalf at sentencing. There is no showing that any arguments by defense counsel would have impacted the court’s sentencing decision and, thus, “the failure of [defense] counsel to speak on defendant’s behalf at sentencing d[id] not constitute ineffective assistance of counsel” (People v Adams, 247 AD2d 819, 819 [1998], lv denied 91 NY2d 1004 [1998]). Present — Centra, J.R, Fahey, Garni, Green and Gorski, JJ.