Opinion
2018-06052 Ind. 17-00726
12-01-2021
The People, etc., respondent, v. Joe Bailey, appellant.
Paul N. Weber, Cornwall, NY, for appellant. David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss of counsel), for respondent.
Submitted - September 21, 2021
D67877 T/htr
Paul N. Weber, Cornwall, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss of counsel), for respondent.
MARK C. DILLON, J.P. ANGELA G. IANNACCI LINDA CHRISTOPHER JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Robert H. Freehill, J.), rendered April 26, 2018, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid (see People v Thomas, 34 N.Y.3d 545, 565-566). The County Court's discussion of this issue during the plea proceeding mistakenly suggested that the waiver was an absolute bar to the taking of an appeal (see People v Momoh, 192 A.D.3d 915, 915-916). That misconception was not corrected by the written waiver of the right to appeal form signed by the defendant, since it stated that the waiver encompassed "any and all rights to appeal from the judgment of conviction herein," and otherwise failed to inform the defendant that appellate review of certain issues survived the waiver (see People v Thomas, 34 N.Y.3d at 565-566; People v Leiva, 184 A.D.3d 731, 731). Accordingly, the purported waiver does not preclude this Court's review of the defendant's remaining claims.
By pleading guilty, the defendant forfeited any claims of ineffective assistance of counsel that did not directly involve the plea negotiation process (see People v Brown, 170 A.D.3d 878, 879; People v Fakhoury, 103 A.D.3d 664, 664). The defendant contends that several statements that his attorney made to the County Court during the plea negotiation process portrayed him in a negative light and thus may have affected the court's sentencing determination. Two of these statements, however, constituted a proper effort on counsel's part to ensure that the defendant understood the advantages of the plea offer being made (see Purdy v United States, 208 F.3d 41, 44-45 [2d Cir]), and to memorialize his efforts in this regard (see Missouri v Frye, 566 U.S. 134, 146-147). The third statement challenged by the defendant was an accurate description of the defendant's predicate felon status and, therefore, did not amount to deficient performance.
To the extent the defendant contends that ineffective assistance of counsel affected the voluntariness of his plea, the record demonstrates that the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel (see People v Soria, 99 A.D.3d 1027, 1028). During the plea proceeding, the defendant indicated to the County Court that he had enough time to speak with his attorney about the "legal" and "procedural" aspects of this case, as well as any potential defenses to the charges. The defendant also stated that he was satisfied with his attorney's representation and advice. Accordingly, to the extent the defendant contends that his attorney's performance undermined the voluntariness of his plea, that contention is refuted by his own statements (see People v Brown, 170 A.D.3d at 879).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
DILLON, J.P., IANNACCI, CHRISTOPHER and ZAYAS, JJ., concur.