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

229
KA 12-00550
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEVEN T. O’NEIL, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered February 1, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a forged
instrument in the second 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 possession of a
forged instrument in the second degree (Penal Law § 170.25) and, in
appeal No. 2, he appeals from a judgment convicting him upon his plea
of guilty of, inter alia, grand larceny in the third degree (§ 155.35
[1]) and criminal possession of stolen property in the third degree
(§ 165.50). The conviction of grand larceny in the third degree in
appeal No. 2 served as the predicate felony relied upon by County
Court when it sentenced defendant as a second felony offender in
appeal No. 1.

     Addressing appeal No. 2 first, we note that defendant failed to
preserve for our review his challenges to the voluntariness and
factual sufficiency of his plea because he failed to move to withdraw
his plea or vacate the judgment of conviction (see People v Lawrence,
118 AD3d 1501, 1501; cf. People v Frysinger, 111 AD3d 1397, 1398).
Contrary to defendant’s contention, the narrow exception to the
preservation requirement does not apply, inasmuch as “[t]his is not
one of those rare cases ‘where the defendant’s recitation of the facts
underlying the crime[s] pleaded to clearly casts significant doubt
upon the defendant’s guilt or otherwise calls into question the
voluntariness of the plea[]’ to obviate the preservation requirement”
(People v Rodriguez, 17 AD3d 1127, 1129, lv denied 5 NY3d 768, quoting
People v Lopez, 71 NY2d 662, 666).
                                 -2-                           229
                                                         KA 12-00550

     Contrary to defendant’s contention in appeal No. 1, defense
counsel’s failure to challenge the validity of the conviction in
appeal No. 2 before defendant accepted the plea bargain in appeal No.
1 does not constitute ineffective assistance of counsel because that
challenge would have had little or no chance of success (see generally
People v Caban, 5 NY3d 143, 152; People v Rincon, 62 AD3d 574, 575-
576, lv denied 13 NY3d 748).

     As defendant correctly concedes, his contention in appeal No. 1
that he was not properly adjudicated to be a second felony offender
due to the invalidity of his plea in appeal No. 2 is without merit
where, as here, we are affirming the judgment in appeal No. 2.




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
