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

826
KA 13-00651
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LATEEK DAVIS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LATEEK DAVIS, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (NATHAN J. GARLAND OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered February 28, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal sale of a
controlled substance in the third degree (Penal Law § 220.39 [1]) and,
in appeal No. 2, he appeals from a judgment that also convicted him
upon his plea of guilty of that crime. In both appeals, defendant
contends in a pro se supplemental brief that he was denied effective
assistance of counsel based on his attorney’s failure to file motions
or investigate the crime. Defendant’s contention that he was denied
effective assistance of counsel survives his guilty pleas only to the
extent that “he contends that his plea[s were] infected by the
allegedly ineffective assistance and that he entered the plea[s]
because of his attorney’s allegedly poor performance” (People v
Bethune, 21 AD3d 1316, 1316, lv denied 6 NY3d 752; see People v
Jacques, 79 AD3d 1812, 1812, lv denied 16 NY3d 896). With respect to
defendant’s contention that he was forced to plead guilty because
defense counsel failed to file motions, the record reflects that
defense counsel, with defendant’s consent, repeatedly requested
adjournments of the date for filing motions in order to pursue plea
negotiations. “ ‘[I]t is incumbent on defendant to demonstrate the
absence of strategic or other legitimate explanations’ for [defense]
counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712,
                                 -2-                           826
                                                         KA 13-00651

quoting People v Rivera, 71 NY2d 705, 709). Here, particularly in
light of the evidence in the record establishing that defense counsel
delayed in filing motions in order to arrange a plea agreement in
accordance with defendant’s wishes, we conclude that defendant failed
to meet that burden (see People v Elamin, 82 AD3d 1664, 1665, lv
denied 17 NY3d 794; People v Jacobs, 52 AD3d 1182, 1184, lv denied 11
NY3d 926). Further, to the extent that defendant contends that
defense counsel was ineffective in failing to investigate the crimes,
we note that such contention is based on matters outside the record
and thus is not reviewable on direct appeal (see People v Cobb, 72
AD3d 1565, 1567, lv denied 15 NY3d 803; People v Washington, 39 AD3d
1228, 1230, lv denied 9 NY3d 870).

     Contrary to defendant’s contention in his main brief, his
sentence is not unduly harsh or severe.




Entered:   July 3, 2014                         Frances E. Cafarell
                                                Clerk of the Court
