         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
248
KA 09-01869
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM LIGGINS, DEFENDANT-APPELLANT.


JAMES A. BAKER, ITHACA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Oneida County Court (Michael L. Dwyer, J.), dated August 6, 2009.
The order denied the motion of defendant pursuant to CPL 440.10 to
vacate the judgment convicting him of murder in the second degree.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: We previously reversed an order denying without a
hearing defendant’s motion pursuant to CPL 440.10 to vacate the
judgment convicting him upon his plea of guilty of murder in the
second degree (Penal Law § 125.25 [2]), and we remitted the matter for
a hearing on defendant’s contention that he was denied effective
assistance of counsel (People v Liggins, 56 AD3d 1265). Following
that hearing on remittal, County Court denied defendant’s motion. We
affirm.

     “In 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 on the apparent effectiveness of
counsel” (People v Ford, 86 NY2d 397, 404). Here, defendant pleaded
guilty to the murder count in satisfaction of the indictment, which
also charged him with criminal possession of a weapon in the third
degree (Penal Law § 265.02 [former (4)]). He was convicted as a
juvenile offender and received the minimum sentence of incarceration
of five years to life in accordance with the plea agreement (see §
70.05 [2] [a]; [3] [a]). The record establishes that the 15-year-old
defendant fired a weapon six times at a speeding vehicle on a
residential street at approximately 6:00 on a summer evening, after
the driver failed to pay for drugs sold to him by defendant. Only one
bullet struck the vehicle, which was just over 260 feet from
defendant, and it then struck the driver, killing him.
                                 -2-                           248
                                                         KA 09-01869

     Contrary to defendant’s contention, the failure of defense
counsel to make pretrial motions did not deprive him of meaningful
representation. The record establishes that the plea offer would be
available only for approximately two weeks following defendant’s
arraignment on the indictment and that defense counsel engaged in a
thorough investigation of the facts and the evidence against
defendant. Upon researching the law in light of the facts and
evidence against defendant, defense counsel assessed the likelihood of
success of motions to dismiss or reduce the indictment and to suppress
defendant’s statement to the police as well as the weapon that was
recovered. Defense counsel also assessed the likelihood that
defendant would be acquitted after a trial of the murder count, and
would instead be convicted of the lesser included offense of
manslaughter in the second degree (see § 125.15 [2]). As the court
properly determined following the hearing on defendant’s CPL 440.10
motion, defense counsel’s determination that an acquittal of the
murder count was unlikely is supported both by the record and the
standard for depraved indifference murder applicable at the time of
the offense (see People v Register, 60 NY2d 270, 276, cert denied 466
US 953; cf. People v Feingold, 7 NY3d 288). We therefore agree with
the court that defendant received meaningful representation (see Ford,
86 NY2d at 404; People v Colon, 72 AD3d 558, lv denied 15 NY3d 850).




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
