Opinion
2012-10-5
The PEOPLE of the State of New York, Respondent, v. McArthur DAVIS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of one count each of murder in the first degree (Penal Law § 125.27 [1][a][vii]; [b] ) and robbery in the first degree (§ 160.15[1] ), and two counts of murder in the second degree (§ 125.25[1], [3] ). Contrary to defendant's contention, the record establishes that his waiver of the right to appeal was knowingly, intelligently and voluntarily entered ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Aguayo, 37 A.D.3d 1081, 1081, 829 N.Y.S.2d 350,lv. denied8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660;People v. Peterson, 35 A.D.3d 1195, 1196, 825 N.Y.S.2d 622,lv. denied8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462). Although defendant's contention that he was coerced into pleading guilty and thus that the plea was not voluntarily entered survives his waiver of the right to appeal, defendant did not move to withdraw the plea or to vacate the judgment of conviction and therefore failed to preserve that contention for our review ( see People v. Harrison, 4 A.D.3d 825, 826, 771 N.Y.S.2d 448,lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919;People v. Williams, 272 A.D.2d 986, 986, 708 N.Y.S.2d 673). Defendant's plea of guilty forecloses his present challenge to County Court's evidentiary rulings ( see People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773).
The further contention of defendant 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. Dean, 48 A.D.3d 1244, 1245, 852 N.Y.S.2d 545,lv. denied10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [internal quotation marks omitted] ). In any event, it is well settled that, “[i]n 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. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). We conclude on the record before us that defendant was afforded meaningful representation ( see generally id.).
Contrary to defendant's further contention, “there is no evidence in the record indicating an abuse of discretion by the court in denying the motion for substitution of counsel where[, as here, the] defendant failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry” ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283;see People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233). Finally, defendant challenges the severity of the sentence. However, his waiver of the right to appeal “ ‘includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction to reduce the sentence’ ” ( People v. Smith, 55 A.D.3d 1409, 1410, 866 N.Y.S.2d 466,lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449, quoting Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.