Opinion
118 KA 14-00191.
02-11-2016
The PEOPLE of the State of New York, Respondent, v. Donald R. COOPER, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Gary M. Phillips of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Gary M. Phillips of Counsel), for Defendant–Appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated (Vehicle and Traffic Law § 11922 ) and aggravated unlicensed operation of a motor vehicle in the second degree (§ 511 2[a] ). We note at the outset that the certificate of conviction contains a clerical error, i.e., it incorrectly recites that defendant was convicted of aggravated unlicensed operation of a motor vehicle in the first degree, and it must therefore be amended to reflect that he was convicted of aggravated unlicensed operation of a motor vehicle in the second degree (see People v. Saxton, 32 A.D.3d 1286, 1286–1287, 821 N.Y.S.2d 353).
We agree with defendant that his waiver of the right to appeal is not valid (see People v. Jackson, 99 A.D.3d 1240, 1240–1241, 951 N.Y.S.2d 449, lv. denied 20 N.Y.3d 987, 958 N.Y.S.2d 702, 982 N.E.2d 622). During the plea colloquy, County Court “conflated the appeal waiver with the rights automatically waived by the guilty plea” (People v. Martin, 88 A.D.3d 473, 474, 931 N.Y.S.2d 7, affd. 19 N.Y.3d 914, 950 N.Y.S.2d 84, 973 N.E.2d 179) and, thus, “the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Jackson, 99 A.D.3d at 1241, 951 N.Y.S.2d 449 [internal quotation marks omitted] ). Defendant failed to preserve for our review his contention with respect to the alleged inaccuracy of information relied upon by the court in sentencing him (see People v. Lord, 59 A.D.3d 1010, 1011, 872 N.Y.S.2d 312, lv. denied 12 N.Y.3d 855, 881 N.Y.S.2d 667, 909 N.E.2d 590), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.153[c] ). Defendant's contention that he was denied effective assistance of counsel does not survive his plea because defendant “failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of his attorney ['s] allegedly poor performance” (People v. Grandin, 63 A.D.3d 1604, 1604, 880 N.Y.S.2d 826 [internal quotation marks omitted], lv. denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016). 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. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265; see People v. Parson, 122 A.D.3d 1441, 1443, 997 N.Y.S.2d 198). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.