Opinion
2012-10-5
The PEOPLE of the State of New York, Respondent, v. David JACKSON, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.), rendered June 3, 2010. The judgment convicted defendant, upon his plea of guilty, of rape in the first degree. Kevin J. Bauer, Albany, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.), rendered June 3, 2010. The judgment convicted defendant, upon his plea of guilty, of rape in the first degree.
Kevin J. Bauer, Albany, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35[1] ), defendant contends that his plea was not knowing, intelligent, and voluntary. Defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground and thus has failed to preserve his contention for our review ( see People v. Francis, 53 A.D.3d 1112, 1113, 862 N.Y.S.2d 424,lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659). This case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez (71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). In any event, defendant's contention lacks merit ( see People v. Moorer, 63 A.D.3d 1590, 1591, 879 N.Y.S.2d 760,lv. denied13 N.Y.3d 837, 890 N.Y.S.2d 453, 918 N.E.2d 968;People v. Jones, 42 A.D.3d 968, 968, 840 N.Y.S.2d 860). Defendant's further contention that he was denied effective assistance of counsel does not survive his plea of guilty inasmuch as “[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” ( People v. Burke, 256 A.D.2d 1244, 1244, 682 N.Y.S.2d 650,lv. denied93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097;see People v. Barnes, 32 A.D.3d 1250, 1251, 821 N.Y.S.2d 541).
We agree with defendant that his waiver of the right to appeal is invalid and thus does not encompass his challenge to the severity of the period of postrelease supervision. “[I]t is not clear that ‘the trial court engaged in a full and adequate colloquy, and [that] defendant expressly waived [his] right to appealwithout limitation’ ” ( People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272;see generally People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46), and defendant's waiver of the right to appeal also is invalid “inasmuch as the record fails to establish that ‘defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( People v. Balkum, 71 A.D.3d 1594, 1595, 897 N.Y.S.2d 824,lv. denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008;see People v. Daniels, 68 A.D.3d 1711, 1712, 891 N.Y.S.2d 815,lv. denied 14 N.Y.3d 887, 903 N.Y.S.2d 775, 929 N.E.2d 1010;People v. Williams, 59 A.D.3d 339, 340, 874 N.Y.S.2d 63,lv. denied 12 N.Y.3d 861, 881 N.Y.S.2d 672, 909 N.E.2d 595). Nevertheless, we reject defendant's challenge to the severity of the period of postrelease supervision.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.