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

603
KA 11-00375
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAWN G. GRANGER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (KRISTYNA S. MILLS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered May 26, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree (two counts), criminal use of
drug paraphernalia in the second degree (two counts), driving while
ability impaired by drugs, suspended registration, operating a motor
vehicle without insurance, speeding (two counts), criminal possession
of marihuana in the second degree, reckless driving, leaving the scene
of a property damage accident, failure to keep right, criminal
possession of a controlled substance in the seventh degree (two
counts), and unlawful possession of marihuana (two counts).

     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 two counts of criminal
possession of a controlled substance in the third degree (Penal Law §
220.16 [1], [12]) and various other drug-related offenses. In appeal
No. 2, he appeals from a judgment convicting him upon his guilty plea
of, inter alia, criminal possession of a controlled substance in the
third degree (§ 220.16 [1]), assault in the second degree (§ 120.05
[3]), and harassment in the second degree (§ 240.26 [1]).

     Addressing first appeal No. 2, we note that defendant challenges
the sufficiency of the plea allocution with respect to assault in the
second degree on the ground that he denied having struck the arresting
police officer with his fist, which thereby negated an element of the
crime. Because defendant did not move to withdraw his plea or to
vacate the judgment of conviction, defendant’s contention is
unpreserved for our review (see People v Lopez, 71 NY2d 662, 665;
People v Jackson, 90 AD3d 1692, 1693, lv denied 18 NY3d 958). In any
                                 -2-                           603
                                                         KA 11-00375

event, although defendant stated during the plea colloquy that he
“never struck” the arresting officer, we conclude that County Court
made the proper further inquiry in accordance with Lopez (71 NY2d at
666) and elicited from defendant an admission that, after
intentionally resisting arrest, his body came into contact with the
officer’s body. Defendant further admitted that, as a result of his
struggle with the officer, the officer sustained an injury to his knee
that caused him substantial pain or impaired his physical condition.
The mere fact that defendant denied having struck the officer is
immaterial because intent to cause injury is not an element of assault
in the second degree under section 120.05 (3). In addition, we note
that the People did not allege that the physical injury sustained by
the officer resulted from the punch allegedly thrown by defendant.
Although defendant’s denial that he punched the officer may have
negated an element of harassment in the second degree, defendant does
not challenge the sufficiency of his plea to that noncriminal offense.

     Defendant contends in both appeals that he was deprived of his
right to effective assistance of counsel based upon his attorney’s
failure to pursue his motions to suppress evidence obtained from his
person and his vehicle. To the extent that defendant’s contention
survives his guilty pleas, i.e., to the extent defendant contends that
“his plea[s were] infected by the alleged ineffective assistance”
(People v Culver, 94 AD3d 1427, 1427 [internal quotation marks
omitted]), we conclude that defendant received meaningful
representation. Defense counsel negotiated advantageous plea
agreements, and defendant made a strategic decision to accept the plea
offers before the court ruled on his suppression motions (see
generally People v Ford, 86 NY2d 397, 404). Finally, we reject
defendant’s challenge to the severity of the sentence, particularly in
view of the fact that he was eligible to be sentenced as a persistent
felony offender and faced consecutive sentences on five separate
felony charges.




Entered:   June 29, 2012                        Frances E. Cafarell
                                                Clerk of the Court
