Opinion
KA 00-02721
February 7, 2003.
Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered May 25, 2000, convicting defendant upon his plea of guilty of, inter alia, murder in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), For Defendant-appellant.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), For Plaintiff-respondent.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
We reject the contention of defendant that he was denied effective assistance of counsel and that, as a result, his plea of guilty was not knowingly, intelligently and voluntarily entered. Contrary to defendant's contention, defense counsel's advice to defendant to accept the plea offer before the Huntley hearing was conducted does not constitute ineffective assistance of counsel (see People v. Gibson, 261 A.D.2d 710, 711). Nor was defense counsel ineffective in advising defendant to accept an offer exposing him to the maximum terms of imprisonment on each count when the offer also provided that those terms would run concurrently rather than consecutively (see People v. Gale, 130 A.D.2d 588, 589; People v. Lewis, 116 A.D.2d 778, 779, lv denied 67 N.Y.2d 885). Contrary to the further contention of defendant, the record establishes that his waiver of the right to appeal was knowing, intelligent and voluntary (see People v. Hidalgo, 91 N.Y.2d 733, 736; People v. Burse, 295 A.D.2d 968, 969, lv denied 98 N.Y.2d 709), and that waiver encompasses defendant's challenge to the severity of the sentence (see People v. Lococo, 92 N.Y.2d 825, 827).