                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 28, 2016                     107086
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MICHAEL BRIGGS,
                    Appellant.
________________________________


Calendar Date:    March 22, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.

                              __________


     Catherine A. Barber, Albany, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                              __________


Garry, J.

      Appeal from a judgment of the County Court of Schenectady
County (Drago, J.), rendered August 29, 2014, convicting
defendant upon his plea of guilty of the crimes of murder in the
second degree and attempted burglary in the second degree.

      On January 1, 2013, the victim, an 82-year-old former nun,
was discovered in her apartment lying in a pool of blood with a
kitchen knife protruding from her neck. She died as a result of
asphyxiation caused by strangulation, but had also been stabbed
and violently attacked prior to her death under circumstances
suggesting that she had interrupted a burglary. Defendant, who
had absconded from parole supervision, was arrested and charged
in an indictment with multiple crimes, including murder in the
first degree, arising from this tragic event. He was assigned
                               -2-                107086

counsel and, upon counsel's advice, pleaded guilty to murder in
the second degree and attempted burglary in the second degree in
satisfaction of the indictment.1 He also waived his right to
appeal, both orally and in writing.

      New counsel was subsequently assigned and defendant moved
to withdraw his guilty plea. County Court denied the motion.
Thereafter, a hearing was conducted concerning the validity of
defendant's prior convictions. At the hearing, defendant
withdrew his challenge to the constitutionality of these
convictions and County Court ruled that he would be sentenced as
a second felony offender. In accordance with the plea agreement,
he was sentenced as a second felony offender to consecutive
prison terms of 25 years to life on the murder conviction and
five years on the attempted burglary conviction, the latter of
which was to be followed by five years of postrelease
supervision. Defendant now appeals.

      Initially, defendant contends that he was deprived of the
effective assistance of counsel by both of the attorneys who were
assigned to represent him during the course of the proceedings.
He maintains that his first assigned counsel improvidently
advised him to enter a plea of guilty and that his second
assigned counsel failed to properly contest the validity of his
prior convictions, which affected the period of postrelease
supervision that he would receive on the attempted burglary
conviction under the terms of the plea agreement. To the extent
that defendant's ineffective assistance claims impact the
voluntariness of his guilty plea, they were properly preserved by
his motion to withdraw the plea (see People v Moore, 97 AD3d 850,
851 [2012]; compare People v Bethea, 133 AD3d 1033, 1034 [2015]).

      Turning to the merits, we note that, "[i]n the context of a
guilty plea, a defendant has been afforded meaningful
representation when he or she receives an advantageous plea and
nothing in the record casts doubt upon the apparent effectiveness


     1
        Defendant was initially represented by the Schenectady
County Conflict Defender's office before assigned counsel was
substituted to represent defendant.
                              -3-                107086

of counsel" (People v Nieves, 89 AD3d 1285, 1286 [2011] [internal
quotation marks and citation omitted]; see People v Vonneida, 130
AD3d 1322, 1322 [2015], lv denied 26 NY3d 1093 [2015]; People v
Jenkins, 130 AD3d 1091, 1091 [2015]). Here, defendant's first
assigned counsel zealously represented him during the course of a
combined Huntley/Wade hearing that took five days to complete and
made appropriate pretrial motions. He based his plea
recommendation upon the overwhelming evidence of defendant's
guilt and secured a favorable plea that exposed defendant to a
lesser sentence than he would have received if he was convicted
after trial. Notably, defendant expressed his satisfaction with
counsel's representation at the time of entering his plea. Under
the circumstances presented, we find that defendant's first
assigned counsel provided him with meaningful representation (see
People v Beekman, 134 AD3d 1355, 1357 [2015]; People v Burns, 133
AD3d 1045, 1047-1048 [2015]).

      Defendant's second assigned counsel appeared on his behalf
at the hearing to consider the validity of two prior convictions
from Nassau County that provided the basis for his status as a
second felony offender. A review of the hearing transcript
discloses that, during an off-the-record discussion with counsel,
defendant indicated that he did not wish to challenge the
constitutionality of his prior convictions in County Court, but
would pursue this remedy in another court. Defendant confirmed
the substance of this discussion on the record and then admitted
that he was the same person convicted in Nassau County of the
crimes of robbery in the first degree and burglary in the first
degree. Thus, he waived any challenge to the constitutionality
of his prior convictions (see People v Provencher, 72 AD3d 1128
[2010]; People v Crippa, 245 AD2d 811, 812 [1997], lv denied 92
NY2d 850 [1998]) and, under the circumstances presented, there is
nothing to indicate that his second assigned counsel was
ineffective in recommending that he do so.

      Defendant's assertion that he was not aware of the period
of postrelease supervision that would be imposed on the attempted
burglary conviction based upon his status as a second felony
offender is simply not supported by the record. During the plea
proceedings, County Court specifically advised defendant that,
under the terms of the plea agreement, five years of postrelease
                              -4-                  107086

supervision would be imposed upon the attempted burglary
conviction given his two prior violent felony convictions, and
defendant communicated his understanding to the court.
Accordingly, defendant entered his guilty plea knowing the full
implications of his status as a second felony offender.

      Defendant's final contention that the sentence is harsh and
excessive is precluded by his valid waiver of the right to appeal
(see People v Brasmeister, 136 AD3d 112, 113 [2016]).

     Lahtinen, J.P., McCarthy, Rose and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
