Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Jerry MASSEY, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando Of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando Of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2] ). We reject defendant's contention that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently entered (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). County Court "did not conflate that right with those automatically forfeited by a guilty plea" (People v. McCrea, 140 A.D.3d 1655, 1655, 32 N.Y.S.3d 778, lv. denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [internal quotation marks omitted] ), and we conclude that "the court engaged defendant ‘in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ " (People v. Marshall, 144 A.D.3d 1544, 1545, 41 N.Y.S.3d 337 ). Defendant's contention that his plea was not knowingly, voluntarily, and intelligently entered because he did not recite the elements of the crime and only agreed with the court's description of the incident is actually a challenge to the factual sufficiency of the plea allocution, which is foreclosed by defendant's valid waiver of the right to appeal (see People v. Dale, 142 A.D.3d 1287, 1288, 38 N.Y.S.3d 333, lv. denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 ).
Defendant further contends that his guilty plea was not knowingly, intelligently, and voluntarily entered and that the court abused its discretion in denying his motion to withdraw his plea on that ground without first conducting a hearing. Although that contention survives defendant's waiver of the right to appeal (see id. ), the record establishes that defendant withdrew his motion to withdraw his guilty plea and thereby waived any contention with respect to that motion (see People v. Harris, 97 A.D.3d 1111, 1112, 948 N.Y.S.2d 512, lv. denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 ; People v. Gilliam, 96 A.D.3d 1650, 1651, 946 N.Y.S.2d 811, lv. denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 ).
To the extent that defendant's contention that he was denied effective assistance of counsel survives his valid waiver of the right to appeal (see People v. Rausch, 126 A.D.3d 1535, 1535, 6 N.Y.S.3d 863, lv. denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 ), we conclude that it lacks merit. Defendant has not shown that his motion to withdraw his guilty plea would have been successful if not withdrawn (see Harris, 97 A.D.3d at 1112, 948 N.Y.S.2d 512 ). Moreover, defendant "receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of [defense] counsel" (Dale, 142 A.D.3d at 129, 38 N.Y.S.3d 3330 [internal quotation marks omitted] ).
Finally, the valid waiver of the right to appeal forecloses defendant's challenge to the severity of his sentence (see generally Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.