Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. Lance R. BISHOP, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Lance R. Bishop, Defendant–Appellant pro se.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Lance R. Bishop, Defendant–Appellant pro se.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, and SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20[1] ). Although the defendant's contention that his plea was not knowing, intelligent, or voluntary survives his waiver of the right to appeal, defendant failed to preserve his contention for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction ( see People v. Watkins, 77 A.D.3d 1403, 1403, 909 N.Y.S.2d 233,lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327). Furthermore, “[n]othing in the plea allocution raised the possibility that [a justification defense was] applicable in this case, and defendant's contention therefore does not fall within the narrow exception to the preservation rule” ( People v. Hart, 114 A.D.3d 1273, 1273, 980 N.Y.S.2d 863;cf. People v. Ponder, 34 A.D.3d 1314, 1315, 823 N.Y.S.2d 792;see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).
Defendant's challenge to the alleged amendment to the indictment is similarly unavailing. Although the indictment was amended at the beginning of the plea proceeding to reflect the charge to which defendant ultimately pleaded guilty under the agreement, we conclude that County Court's reference to an incorrect Penal Law provision, while referring to the crime of manslaughter in the first degree by name, was akin to a mere “misnomer in the designation of the crime charged,” which does not create a jurisdictional defect ( People v. Rodriguez, 97 A.D.3d 246, 252, 945 N.Y.S.2d 313,lv. denied19 N.Y.3d 1028, 953 N.Y.S.2d 562, 978 N.E.2d 114). Thus, defendant's uncontested waiver of the right to appeal precludes his challenge to the court's failure to recite the applicable provision ( see People v. Cullen, 62 A.D.3d 1155, 1157, 880 N.Y.S.2d 211,lv. denied13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439) and, in any event, the court's misstatement “ ‘[is] an irregularity’ ” that does not survive defendant's plea of guilty ( Rodriguez, 97 A.D.3d at 252, 945 N.Y.S.2d 313;see People v. Judd, 111 A.D.3d 1421, 1422, 975 N.Y.S.2d 312;see generally People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656).
The ineffective assistance of counsel claims contained in defendant's pro se supplemental brief do not survive his plea and waiver of the right to appeal, because defense counsel's allegedly poor performance did not infect the plea bargaining process ( see People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794,lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915;see also People v. Hodge, 85 A.D.3d 1680, 1681, 925 N.Y.S.2d 778,lv. denied18 N.Y.3d 883, 939 N.Y.S.2d 753, 963 N.E.2d 130;People v. Kearns, 50 A.D.3d 1514, 1515, 856 N.Y.S.2d 772,lv. denied11 N.Y.3d 790, 866 N.Y.S.2d 616, 896 N.E.2d 102). Furthermore, to the extent that many of his contentions involve matters outside the record on appeal, we note that they must be raised by way of a motion pursuant to CPL 440.10 ( see People v. Russell, 83 A.D.3d 1463, 1465, 919 N.Y.S.2d 721,lv. denied17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103).
We have reviewed defendant's remaining contentions in his pro se supplemental brief and conclude that none requires modification or reversal of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.