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

797
KA 14-00471
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM M. COLLINS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered June 20, 2013. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class D felony, and aggravated unlicensed operation of a motor vehicle
in the first degree.

     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 driving while intoxicated (DWI) as a class
D felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]) and
aggravated unlicensed operation of a motor vehicle in the first
degree, a class E felony (§ 511 [3] [a] [i]; [b]). We agree with
defendant that his waiver of the right to appeal was invalid inasmuch
as he pleaded guilty to both charges in the superior court information
without a sentencing commitment (see People v Meiner, 20 AD3d 778, 778
n; People v Coles, 13 AD3d 665, 666), but we nevertheless reject his
challenge to the severity of the sentence, particularly in view of
defendant’s numerous driving and alcohol-related offenses.

     Although defendant’s contention that he received ineffective
assistance of counsel during the plea bargaining stage survives his
plea of guilty to the extent that he contends that his plea was
infected by the ineffective assistance (see People v Neil, 112 AD3d
1335, 1336, lv denied 23 NY3d 1040), defendant’s contention is without
merit (see generally People v Ford, 86 NY2d 397, 404). Although
defense counsel did not negotiate a lower sentence for defendant and
he was sentenced to the maximum indeterminate term for the DWI
conviction, given defendant’s long history of drinking and driving
offenses and the serious nature of the instant offense, it was
unlikely that the court or the People would have extended a plea
                                 -2-                           797
                                                         KA 14-00471

offer. “Counsel will not be deemed ineffective for the failure to
pursue a course of negotiation that was, at best, ‘dubious’ ” (People
v Dimick, 223 AD2d 808, 809, lv denied 89 NY2d 1034).

     We reject defendant’s contention that defense counsel’s comments
at the sentencing hearing rendered him ineffective. “Even assuming,
arguendo, that the attorney took a position adverse to defendant, we
conclude that reversal is not warranted because the statements did not
‘contribute to any rulings against defendant’ ” (People v Winters, 82
AD3d 1691, 1692, lv denied 17 NY3d 810).

     Defendant’s contention that defense counsel was ineffective
because defendant was misled into believing that he would benefit from
the plea cannot be reviewed on direct appeal inasmuch as it is based
on matters outside the record (see People v Davis, 119 AD3d 1383,
1384, lv denied 24 NY3d 960).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
