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

535
KA 13-00449
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JONATHAN MORRIS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered November 20, 2012. The judgment convicted
defendant, upon his plea of guilty, of rape 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 guilty plea of rape in the third degree (Penal
Law § 130.25 [2]) and, in appeal No. 2, defendant appeals from a
judgment convicting him upon his guilty plea of, inter alia, attempted
burglary in the second degree (§§ 110.00, 140.25 [2]) as a lesser
included offense of burglary in the second degree, charged in count
one of the indictment.

     Defendant contends in appeal No. 1 that he was deprived of the
right to effective assistance of counsel based upon defense counsel’s
abandonment of a suppression motion that defense counsel had
previously filed. To the extent that defendant’s contention survives
his guilty plea, i.e., to the extent that defendant contends that “his
plea was infected by the alleged ineffective assistance” (People v
Culver, 94 AD3d 1427, 1427, lv denied 19 NY3d 1025 [internal quotation
marks omitted]), we conclude that it is without merit. Defendant has
failed to demonstrate the absence of strategic or other legitimate
explanations for defense counsel’s decision not to pursue the
suppression motion (see People v Webb, 92 AD3d 1268, 1269). We
conclude that defense counsel provided meaningful representation (see
generally People v Ford, 86 NY2d 397, 404).

     In appeal No. 2, defendant contends that County Court erred in
denying his motion to dismiss count one of the indictment, charging
burglary in the second degree, because the People failed to allege an
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                                                         KA 13-00449

essential element of the crime, namely, that he had entered the
dwelling “unlawfully” (Penal Law § 140.25 [2]). We reject that
contention. That count of the indictment specifically referred to
Penal Law § 140.25 (2) and, thus, the People’s failure to allege that
defendant entered the dwelling “unlawfully” does not constitute a
jurisdictional defect requiring dismissal of that count (see People v
Wright, 67 NY2d 749, 750; People v Shanley, 15 AD3d 921, 922, lv
denied 4 NY3d 856).

     Finally, the sentence in each appeal is not unduly harsh or
severe.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
