Case Information

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v SCOTT PARILLA, Appellant.

Supreme Court, Appellate Division, First Department, New York

33 A.D.3d 363 | 821 N.Y.S.2d 599

Concur—Tom, J.P., Saxe, Friedman, Catterson and McGuire, JJ.

Judgment, Supreme Court, Bronx County (Steven Lloyd Barrett, J.), rendered September 16, 2003, convicting defendant, upon his plea of guilty, of rape in the first degree and sodomy in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 7 to 14 years, and order, same court and Justice, entered on or about February 28, 2005, which denied defendant’s CPL 440.10 motion to vacate the judgment of conviction on the grounds of ineffective assistance of counsel, unanimously affirmed.

Defendant, who made a valid waiver of his right to appeal, claims that his attorney rendered ineffective assistance by failing to move to dismiss the indictment as time-barred, and that the court improperly enhanced the sentence it promised at the time of the plea. Regardless of whether or not these claims go to the voluntariness of the plea and thus survive the appeal waiver (see People v Denny, 95 NY2d 921, 923 [2000]), we find both arguments to be without merit.

Defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). The record establishes that a motion to dismiss the indictment on statute of limitation grounds would have been futile. The ap-