Opinion
2012-04-27
The PEOPLE of the State of New York, Respondent, v. Alexa R. KNOXSAH, Defendant–Appellant.
James L. Dowsey, III, Ellicottville (Keliann M. Elniski of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
James L. Dowsey, III, Ellicottville (Keliann M. Elniski of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon a plea of guilty of, inter alia, burglary in the third degree (Penal Law § 140.20). We reject defendant's contention that her waiver of the right to appeal was invalid ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Although defendant's further contention that her plea was not knowingly, voluntarily and intelligently entered survives her valid waiver of the right to appeal, defendant failed to preserve that contention for our review ( see People v. Davis, 45 A.D.3d 1357, 1357–1358, 844 N.Y.S.2d 739, lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879). This case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5, “inasmuch as nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea” ( People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623). In any event, the record establishes that the plea was knowingly, voluntarily, and intelligently entered ( see generally People v. Shubert, 83 A.D.3d 1577, 1578, 921 N.Y.S.2d 431).
Although defendant was not required to preserve for our review the contention that she was denied the right to counsel ( see People v. Kinchen, 60 N.Y.2d 772, 773, 469 N.Y.S.2d 680, 457 N.E.2d 786; People v. Harvey, 70 A.D.3d 1454, 1455, 894 N.Y.S.2d 622, lv. denied 15 N.Y.3d 750, 906 N.Y.S.2d 823, 933 N.E.2d 222), we nevertheless conclude that it is without merit. The postplea return on warrant appearance was not a “critical stage of the proceeding” ( People v. Chapman, 69 N.Y.2d 497, 500, 516 N.Y.S.2d 159, 508 N.E.2d 894), and thus the absence of defense counsel did not constitute a deprivation of defendant's rights ( see generally People v. Garcia, 247 A.D.2d 549, 668 N.Y.S.2d 919, affd. 92 N.Y.2d 726, 685 N.Y.S.2d 919, 708 N.E.2d 992, cert. denied 528 U.S. 845, 120 S.Ct. 117, 145 L.Ed.2d 99; People v. Bogan, 78 A.D.3d 855, 855, 911 N.Y.S.2d 166, lv. denied 16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048; People v. Blas, 192 A.D.2d 540, 540, 596 N.Y.S.2d 438, lv. denied 82 N.Y.2d 751, 603 N.Y.S.2d 992, 624 N.E.2d 178).
Defendant further contends that County Court improperly issued a bench warrant based upon her failure to appear for a probation interview and improperly held her without bail pending sentencing upon her rearrest. Even assuming, arguendo, that defendant's contentions survive her valid waiver of the right to appeal, defendant failed to preserve those contentions for our review inasmuch as she did not raise them before County Court ( see generally CPL 470.05[2] ), or by way of a motion to withdraw the plea or to vacate the judgment of conviction, and we decline to reach those contentions as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).
Defendant's contention that she was denied effective assistance of counsel does not survive her plea or her valid waiver of the right to appeal because defendant “failed to demonstrate that ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [her] attorney['s] allegedly poor performance’ ” ( People v. Wright, 66 A.D.3d 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915; see People v. Rizek [Appeal No. 1], 64 A.D.3d 1180, 881 N.Y.S.2d 752, lv. denied 13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101). In any event, we nevertheless conclude that she received meaningful representation ( see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265), inasmuch as “nothing in the record casts doubt upon the apparent effectiveness of counsel” ( People v. Nieves, 89 A.D.3d 1285, 1286, 933 N.Y.S.2d 137 [internal quotation marks omitted] ). Indeed, defense counsel successfully argued for the promised sentence despite defendant's rearrest in violation of the plea agreement.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.