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

1027
KA 14-01324
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SCOTT WENDEL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R.
LOWRY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered February 25, 2013. The judgment
convicted defendant, upon his plea of guilty, of burglary in the
second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of burglary in the second degree (Penal Law
§ 140.25 [2]). Supreme Court sentenced defendant as a second violent
felony offender to nine years of imprisonment to be followed by five
years of postrelease supervision.

     Defendant contends that he was denied effective assistance of
counsel during the pre-indictment plea negotiations on the grounds
that defense counsel allegedly failed to provide meaningful
representation in properly advising defendant with respect to whether
he should accept or reject the offer, and that defense counsel failed
to inform him that the pre-indictment plea offer was about to expire.
That contention “survives his guilty plea only insofar as he contends
that his plea was infected by the allegedly ineffective assistance and
that he entered the plea because of his attorney’s allegedly poor
performance” (People v Bethune, 21 AD3d 1316, 1316, lv denied 6 NY3d
752; see People v Petgen, 55 NY2d 529, 534-535, rearg denied 57 NY2d
674). Here, defendant failed to make a showing that he entered his
plea because of his attorney’s allegedly poor performance.
Furthermore, to the extent that defendant’s contention survives his
guilty plea, we conclude that it lacks merit (see People v Rockwell,
137 AD3d 1586, 1587; cf. People v Abdulla, 98 AD3d 1253, 1254, lv
denied 20 NY3d 985). The record, including the testimony from the
hearing on defendant’s motion to reinstate a prior plea offer,
                                 -2-                          1027
                                                         KA 14-01324

establishes that defendant “received ‘an advantageous plea and nothing
in the record casts doubt on the apparent effectiveness of counsel’ ”
(People v Hoyer, 119 AD3d 1457, 1458).

     Defendant also contends that the court erred in refusing to
suppress a photo array identification of him by a witness based upon
an alleged irregularity in the way the array was compiled. We reject
that contention. “The test to be used in determining the propriety of
pretrial identification is one of fairness . . . based upon the
totality of the surrounding circumstances” (People v Hoyer, 141 AD2d
973, 974, lv denied 72 NY2d 1046). Here, the People established both
the reasonableness of the police conduct in using the vehicle
identified in connection with the burglary to identify defendant, and
then using his physical characteristics as obtained through a prior
booking photo to compile the array, as well as the lack of any undue
suggestiveness in the photo array procedure, and defendant failed to
meet his burden of proving that the procedure was unreasonable or
unduly suggestive (see People v Chipp, 75 NY2d 327, 335-336).

     Finally, we conclude that defendant’s sentence is not unduly
harsh or severe.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
