        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1175
KA 10-00829
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JUMAN L. SHACKELFORD, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARTIN P. MCCARTHY,
II, OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered August 20, 2008. The judgment convicted
defendant, upon his plea of guilty, of assault in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

      Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of assault in the first degree (Penal Law § 120.10 [3]),
defendant contends that his plea was not knowingly entered because the
factual allocution failed to establish that he acted with depraved
indifference. Defendant’s contention is not preserved for our review
inasmuch as he did not move to withdraw his plea or to vacate the
judgment of conviction (see People v Lopez, 71 NY2d 662, 665; People v
Granger, 96 AD3d 1667, 1667). In any event, the allocution was
sufficient to establish that defendant acted with depraved
indifference when he fired numerous shots from his 9 millimeter
handgun into a house in which he had reason to believe people would be
present (see generally People v Suarez, 6 NY3d 202, 214; People v
Payne, 3 NY3d 266, 271-272, rearg denied 3 NY3d 767). Contrary to the
further contention of defendant, defense counsel’s statements
regarding his competency at sentencing do not cast doubt on the
voluntariness of the plea. Defendant was asked a number of questions
during the plea proceedings to which he responded coherently and
rationally, and there is no indication that defendant was unable to
understand the implications of his decision to accept the plea offer
(see generally People v Wilcox, 45 AD3d 1320, 1320, lv denied 10 NY3d
772).

     Defendant’s contention that he was denied effective assistance of
counsel does not survive the plea “because defendant failed to
demonstrate that ‘the plea bargaining process was infected by [the]
                                 -2-                         1175
                                                        KA 10-00829

allegedly ineffective assistance or that defendant entered the plea
because of his attorney[’s] allegedly poor performance’ ” (People v
Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d 912; see People v
Paduano, 84 AD3d 1730, 1731). Finally, we reject defendant’s
contention that the pretrial identification procedure was unduly
suggestive (see People v Sylvester, 32 AD3d 1226, 1226-1227, lv denied
7 NY3d 929; People v Cunningham, 15 AD3d 945, 945-946, lv denied 4
NY3d 829).




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
