Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Ricardo A. AYALA, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY AND VALENTINO, 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] ). Contrary to defendant's contention, he knowingly, voluntarily, and intelligently waived his right to appeal as a condition of the plea ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). County Court “ ‘engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” ( People v. Ripley, 94 A.D.3d 1554, 1554, 942 N.Y.S.2d 919,lv. denied19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769;see 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). Further, the record as a whole establishes “that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;see Ripley, 94 A.D.3d at 1554, 942 N.Y.S.2d 919). Defendant contends that the court erred in refusing to allow him to withdraw his plea on the ground that defense counsel had led him to believe that the plea did not preclude him from filing an appeal. Although that contention survives defendant's waiver of the right to appeal ( see People v. Theall, 109 A.D.3d 1107, 1107–1108, 971 N.Y.S.2d 753), it is unpreserved for our review because the record establishes that defendant did not in fact move to withdraw his plea on that ground ( see People v. Hall, 82 A.D.3d 1619, 1619, 919 N.Y.S.2d 638,lv. denied16 N.Y.3d 895, 926 N.Y.S.2d 31, 949 N.E.2d 979;People v. Carlisle, 50 A.D.3d 1451, 1451, 856 N.Y.S.2d 410,lv. denied10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447). This case does not fall within the rare exception to the preservation requirement because nothing in the plea allocution calls into question the voluntariness of the plea or casts “significant doubt” upon defendant's guilt ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). We conclude that the court did not otherwise abuse its discretion in denying defendant's motion to withdraw his plea, inasmuch as there is no “evidence of innocence, fraud, or mistake in inducing the plea” ( People v. Watkins, 107 A.D.3d 1416, 1416, 966 N.Y.S.2d 637,lv. denied22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555;see 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;People v. Robertson, 255 A.D.2d 968, 968, 681 N.Y.S.2d 919,lv. denied92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188).
Defendant's contention that he was denied effective assistance of counsel “ ‘does not survive his guilty plea or his waiver of the right to appeal because there was no showing 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’ ” ( People v. Russell, 55 A.D.3d 1314, 1314, 864 N.Y.S.2d 587,lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449;see People v. Lugg, 108 A.D.3d 1074, 1075, 968 N.Y.S.2d 785;People v. Lucieer, 107 A.D.3d 1611, 1612, 967 N.Y.S.2d 575).
Defendant's waiver of his right to appeal does not encompass his challenge to the severity of his 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, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272;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). We nevertheless conclude that defendant's sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.