Opinion
2018–01296 Ind. No. 10030/17
05-22-2019
The PEOPLE, etc., Respondent, v. Andre Lamont HENDRIX, also known as "Daddy Roe," Appellant.
Del Atwell, East Hampton, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Brown, 122 A.D.3d 133, 145–146, 992 N.Y.S.2d 297 ).
Although the defendant's contention regarding the voluntariness of his plea survives his valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Lujan, 114 A.D.3d 963, 964, 980 N.Y.S.2d 815 ), the defendant failed to preserve this contention for appellate review (see People v. McClenic, 155 A.D.3d 1064, 64 N.Y.S.3d 554 ; People v. Coachman, 154 A.D.3d 957, 63 N.Y.S.3d 94 ; People v. Martin, 27 A.D.3d 579, 812 N.Y.S.2d 121 ). In any event, the contention is without merit, as the record reflects that the defendant's plea of guilty was knowing, voluntary, and intelligent (see People v. Seeber, 4 N.Y.3d 780, 780–781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Miranda, 67 A.D.3d 709, 710, 886 N.Y.S.2d 890 ). The defendant's contention that his factual allocution was insufficient because he did not admit the "possession" element of criminal possession of a controlled substance in the third degree is unpreserved for appellate review (see People v. Purnell, 166 A.D.3d 814, 816, 88 N.Y.S.3d 86 ; People v. Martin, 27 A.D.3d 579, 812 N.Y.S.2d 121 ; People v. Pryor, 11 A.D.3d 565, 782 N.Y.S.2d 803 ). In any event, this contention is without merit, as the defendant's allocution was sufficient (see Penal Law §§ 10.00[8], 220.16[1] ; People v. Johnson, 165 A.D.3d 701, 701–702, 84 N.Y.S.3d 542 ; People v. Dorrah, 50 A.D.3d 1619, 1619, 856 N.Y.S.2d 406 ; People v. Webb, 286 A.D.2d 899, 730 N.Y.S.2d 926 ; People v. King, 114 A.D.2d 424, 494 N.Y.S.2d 343 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Rodriguez, 144 A.D.3d 950, 950, 40 N.Y.S.3d 786 ; People v. Moore, 140 A.D.3d 1091, 34 N.Y.S.3d 147 ; People v. Upson, 134 A.D.3d 1058, 21 N.Y.S.3d 688 ). To the extent that the defendant's ineffective assistance of counsel claim survives his valid waiver of the right to appeal, his contention is without merit (see People v. Rodriguez, 144 A.D.3d at 950, 40 N.Y.S.3d 786 ; People v. Moore, 140 A.D.3d at 1092, 34 N.Y.S.3d 147 ; People v. Mack, 90 A.D.3d 1317, 1322, 935 N.Y.S.2d 190 ).
MASTRO, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.