Opinion
02-10-2017
The PEOPLE of the State of New York, Respondent, v. Michael KING, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. Michael King, Defendant–Appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
Michael King, Defendant–Appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him, upon his plea of guilty, of driving while intoxicated as a class D felony (Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][ii] ) and sentencing him to an indeterminate term of incarceration of 1 2/3to 5 years. Even assuming, arguendo, that defendant's waiver of the right to appeal was invalid and thus does not preclude our review of his challenge to the severity of the sentence (see People v. Davis, 114 A.D.3d 1166, 1167, 979 N.Y.S.2d 903, lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 ; People v. Theall, 109 A.D.3d 1107, 1108, 971 N.Y.S.2d 753, lv. denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 ), we nevertheless conclude that the sentence is not unduly harsh or severe.
Defendant contends in his pro se supplemental brief that he was denied effective assistance of counsel. That contention does not survive his guilty plea because defendant failed to demonstrate that "the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance" (People v. Lucieer, 107 A.D.3d 1611, 1612, 967 N.Y.S.2d 575 [internal quotation marks omitted]; see People v. VanVleet, 140 A.D.3d 1633, 1633, 34 N.Y.S.3d 274, lv. denied 28 N.Y.3d 938, 40 N.Y.S.3d 365, 63 N.E.3d 85 ). In any event, we conclude that "defendant was afforded meaningful representation inasmuch as he ‘receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel’ " (People v. Cooper, 136 A.D.3d 1397, 1398, 24 N.Y.S.3d 481, lv. denied 27 N.Y.3d 1067, 38 N.Y.S.3d 838, 60 N.E.3d 1204 ; see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ; People v. Parson, 122 A.D.3d 1441, 1443, 997 N.Y.S.2d 198 ).
We have considered defendant's remaining contention, a challenge to the court's jurisdiction that survives the guilty plea and would survive even a valid waiver of the right to appeal (see People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; see also People v. Oliveri, 49 A.D.3d 1208, 1209, 856 N.Y.S.2d 354 ; People v. June, 30 A.D.3d 1016, 1017, 817 N.Y.S.2d 799, lv. denied 7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804, reconsideration denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144 ), and we conclude that the contention is without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.