State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 27, 2016 107265
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
FRANKLIN RUSSELL, Also Known
as NITTY,
Appellant.
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Calendar Date: September 16, 2016
Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.
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Keeley A. Maloney, Albany, for appellant.
Eric T. Schneiderman, Attorney General, New York City
(Matthew B. Keller of counsel), for respondent.
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McCarthy, J.
Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered June 10, 2013, convicting defendant upon
his plea of guilty of the crime of attempted criminal possession
of a controlled substance in the third degree.
Defendant and 51 codefendants were charged in a 261-count
indictment with various crimes related to a conspiracy to
distribute and sell cocaine and heroin in multiple counties
within New York and also in Vermont. Five of those counts
encompassed crimes allegedly committed by defendant. In
satisfaction thereof, defendant pleaded guilty to attempted
criminal possession of a controlled substance in the third degree
and waived his right to appeal, both orally and in writing.
Under the terms of the plea agreement, he was to be sentenced to
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4½ years in prison, to be followed by three years of postrelease
supervision. In exchange, defendant committed to providing
"ongoing cooperation" with authorities in prosecuting a specified
codefendant who was a major participant in the drug conspiracy.
Thereafter, defendant refused to testify against this individual,
only informing the People that there was "no way" he would
testify against him. At sentencing and in regard to his failure
to provide such testimony, defendant explained to County Court
that he "didn't feel like [he] had to testify to what [he had]
admitted to" when he pleaded guilty and that the codefendant was
incarcerated on the same tier at the local correctional
facility.1 Thereafter, County Court sentenced defendant as a
second violent felony offender to an enhanced sentence of 7½
years in prison to be followed by three years of postrelease
supervision. Defendant now appeals.
Initially, defendant contends that County Court improperly
enhanced his sentence because he was not expressly advised that
the terms of the plea agreement included him having to testify
against his codefendant. Although not precluded by his waiver of
the right to appeal, defendant has failed to preserve this claim
as the record does not reveal that he raised it before County
Court or made an appropriate postallocution motion (see People v
Bucknor, 116 AD3d 1233, 1234 [2014]). Under the circumstances
presented, we decline to exercise our interest of justice
jurisdiction to take corrective action inasmuch as the plea
agreement that was articulated on the record required defendant's
ongoing cooperation in prosecuting this specific codefendant,
which sufficiently encompassed the provision of testimony
(compare People v Gabbidon, 96 AD3d 1235, 1235-1236 [2012];
People v Hastings, 24 AD3d 954, 955 [2005]).
1
At no point did defendant seek to be moved to a different
tier. Moreover, defendant never stated that he would have been
willing to testify had he been moved to a different tier or made
any other similar statement that would have contradicted his
earlier claim that there was "no way" that he would testify
against the codefendant.
-3- 107265
Defendant further asserts that he was deprived of the
effective assistance of counsel because his trial counsel failed
to make a motion to withdraw his guilty plea based upon the
improper enhancement of his sentence. However, given the clear
terms of the plea agreement, such motion would have been futile.
The failure to pursue a motion that "has little or no chance of
success" is not a basis for finding that counsel was ineffective
(People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marks
and citation omitted]; see People v Thiel, 134 AD3d 1237, 1240
[2015], lv denied 27 NY3d 1156 [2016]).
Lastly, defendant's challenge to the severity of the
sentence is precluded by his valid waiver of the right to appeal
(see People v Scott, 139 AD3d 1266 [2016], lv denied 27 NY3d 1155
[2016]; People v Briggs, 138 AD3d 1355, 1357 [2016], lv denied 28
NY3d 927 [2016]).
Peters, P.J., Garry, Clark and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court