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

1208
KA 13-00597
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEROME WILLIAMS, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO FOR RESPONDENT.


     Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered December 20, 2010. The judgment convicted
defendant, upon his plea of guilty, of aggravated harassment of an
employee by an inmate.

     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 aggravated harassment of an employee by an
inmate (Penal Law § 240.32). As the People correctly concede,
defendant’s purported waiver of the right to appeal is invalid (see
People v Khan, 291 AD2d 898, 898-899). By failing to move to withdraw
the plea or to vacate the judgment of conviction, defendant failed to
preserve for our review his contention that, based on his alleged
mental illness, his guilty plea was not voluntarily, knowingly and
intelligently entered (see People v Carpenter, 13 AD3d 1193, 1194, lv
denied 4 NY3d 797). This case does not fall within the rare exception
to the preservation requirement because the plea colloquy did not
“clearly cast[] significant doubt upon the defendant’s guilt or
otherwise call[] into question the voluntariness of the plea” (People
v Lopez, 71 NY2d 662, 666; see Carpenter, 13 AD3d at 1194). Nor does
the presentence report cast significant doubt on the voluntariness of
the plea. “A history of prior mental illness or treatment does not
itself call into question defendant’s competence . . . [, and t]here
is no indication in the record that defendant was unable to understand
the proceedings or that he was mentally incompetent at the time he
entered his guilty plea” (People v Robinson, 39 AD3d 1266, 1267, lv
denied 9 NY3d 869 [internal quotation marks omitted]). “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” (People v Shackelford, 100 AD3d 1527, 1528, lv
denied 21 NY3d 1009).
                                 -2-                          1208
                                                         KA 13-00597

     Insofar as defendant contends that he was denied effective
assistance of counsel based on defense counsel’s failure to
investigate his history of mental illness and potential defenses, that
contention involves matters outside the record on appeal and therefore
must be raised by way of a motion pursuant to CPL article 440 (see
People v Dizak, 93 AD3d 1182, 1185, lv denied 19 NY3d 972,
reconsideration denied 20 NY3d 932). Finally, we reject defendant’s
further contention that he was denied effective assistance of counsel
because defense counsel failed to move to withdraw defendant’s plea
based on information regarding defendant’s history of mental illness
contained in the presentence report. There is no basis upon which to
conclude that defendant did not enter the plea knowingly, voluntarily
and intelligently, and it is well settled that “[t]here can be no
denial of effective assistance of [defense] counsel arising from
counsel’s failure to ‘make a motion or argument that has little or no
chance of success’ ” (People v Caban, 5 NY3d 143, 152, quoting People
v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702; see People v
Keith, 26 AD3d 879, 880, lv denied 6 NY3d 835).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
