Opinion
2012-01-24
The PEOPLE, etc., respondent, v. Peter DUAH, appellant.
Gerald Zuckerman, Ossining, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Gerald Zuckerman, Ossining, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Warhit, J.), rendered November 12, 2010, convicting him of aggravated vehicular homicide (two counts), manslaughter in the second degree, vehicular manslaughter in the second degree, vehicular assault in the first degree, assault in the third degree, aggravated driving while intoxicated, driving while intoxicated per se, driving while intoxicated as a misdemeanor, and reckless driving, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal his convictions and sentence as part of the plea agreement ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; see also People v. Belle, 74 A.D.3d 1477, 1478–1479, 902 N.Y.S.2d 258).
The defendant's valid waiver precludes appellate review of his claim that he was denied the effective assistance of counsel, except to the extent that counsel's alleged ineffectiveness affected the voluntariness of his plea ( see People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539; People v. Yarborough, 83 A.D.3d 875, 920 N.Y.S.2d 681; People v. Watt, 82 A.D.3d 912, 918 N.Y.S.2d 347; People v. Aguayo, 73 A.D.3d 938, 899 N.Y.S.2d 878). To the extent that the defendant contends that ineffective assistance of counsel affected the voluntariness of his plea, the record demonstrates that he pleaded guilty to the charges set forth in the indictment in exchange for a favorable sentencing commitment, and nothing in the record casts doubt on the apparent effectiveness of counsel ( see People v. Yarborough, 83 A.D.3d at 875, 920 N.Y.S.2d 681; People v. Watt, 82 A.D.3d at 912–913, 918 N.Y.S.2d 347; People v. Aguayo, 73 A.D.3d at 939, 899 N.Y.S.2d 878). Moreover, the defendant acknowledged at the plea allocution that he was satisfied with his counsel's representation ( see People v. Watt, 82 A.D.3d at 913, 918 N.Y.S.2d 347; People v. Aguayo, 73 A.D.3d at 939, 899 N.Y.S.2d 878; see also People v. Haffiz, 77 A.D.3d 767, 768, 909 N.Y.S.2d 490, lv. granted 17 N.Y.3d 796, 929 N.Y.S.2d 104, 952 N.E.2d 1099).
The defendant's waiver of his right to appeal also precludes review of his excessive sentence claim ( see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Foy, 89 A.D.3d 1103, 933 N.Y.S.2d 599; People v. Hawthorne, 85 A.D.3d 819, 924 N.Y.S.2d 822; People v. Sorino, 82 A.D.3d 911, 912, 918 N.Y.S.2d 348).