Opinion
2014-08-8
The PEOPLE of the State of New York, Respondent, v. Scott ARNEY, Defendant–Appellant.
Linda M. Campbell, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a plea of guilty of assault in the second degree (Penal Law § 120.05[1] ). We reject defendant's contention that his waiver of the right to appeal was invalid. “County Court's plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Buske, 87 A.D.3d 1354, 1354, 930 N.Y.S.2d 155,lv. denied18 N.Y.3d 882, 939 N.Y.S.2d 751, 963 N.E.2d 128 [internal quotation marks omitted] ). Defendant's further contention that “the court erred in failing sua sponte to inquire into his state of intoxication at the time of the commission of the crime is actually a challenge to the factual sufficiency of the plea allocution, and it is well settled that defendant's valid waiver of the right to appeal encompasses that challenge” ( People v. Zimmerman, 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427,lv. denied20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334). In any event, “[t]he issue of intoxication was raised by [defendant] for the first time in the presentence interview, and thus the court had no duty to make further inquiry at the time of the plea based on information in the presentence report” ( People v. Jordan, 292 A.D.2d 860, 861, 739 N.Y.S.2d 511,lv. denied98 N.Y.2d 698, 747 N.Y.S.2d 417, 776 N.E.2d 6;see People v. Espinal, 99 A.D.3d 435, 435, 951 N.Y.S.2d 525,lv. denied20 N.Y.3d 986, 958 N.Y.S.2d 701, 982 N.E.2d 621). Because nothing in defendant's plea allocution cast doubt on the voluntariness of his plea and inasmuch as defendant made no motion to withdraw his plea, defendant's contention is unpreserved for our review ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5).
Although defendant's further contention that he is innocent survives his valid waiver of the right to appeal ( see People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623;see also People v. Franco, 104 A.D.3d 790, 790, 960 N.Y.S.2d 507;People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794,lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915), that contention is also unpreserved for our review ( see Lewandowski, 82 A.D.3d at 1602, 919 N.Y.S.2d 623). In any event, defendant's assertion of innocence is conclusory and belied by his statements during the plea colloquy ( see id.; Wright, 66 A.D.3d at 1334, 885 N.Y.S.2d 794).
We further conclude that the contention of defendant that he was denied effective assistance of counsel “does not survive the plea or his valid waiver of the right to appeal 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 [his] attorney['s] allegedly poor performance’ ” ( Lewandowski, 82 A.D.3d at 1602–1603, 919 N.Y.S.2d 623). “ ‘In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel’ ” ( People v. Liggins, 82 A.D.3d 1625, 1625, 919 N.Y.S.2d 612,lv. denied17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100, quoting People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). Here, defendant failed to assert his innocence or raise a possible intoxication defense at sentencing when given the opportunity to address the court and, given the favorable plea negotiated by defense counsel, which significantly reduced his sentencing exposure, we conclude that defendant was afforded meaningful representation ( see People v. Neil, 112 A.D.3d 1335, 1336, 977 N.Y.S.2d 519).
Finally, we agree with defendant that “the waiver of the right to appeal does not encompass his challenge to the severity of the sentence because ‘no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal’ with respect to his conviction that he was also waiving his right to appeal any issue concerning the severity of the sentence” ( People v. Peterson, 111 A.D.3d 1412, 1412, 974 N.Y.S.2d 864;see People v. Maracle, 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272;People v. Milon, 114 A.D.3d 1130, 1131, 979 N.Y.S.2d 883). Nor is the deficiency in the allocution cured by defendant's written waiver of the right to appeal ( see People v. Ramos–Roman, 112 A.D.3d 1364, 1364, 976 N.Y.S.2d 918;People v. Pimentel, 108 A.D.3d 861, 862, 969 N.Y.S.2d 574,lv. denied21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150;see generally Maracle, 19 N.Y.3d at 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272). We nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.