Opinion
09-20-2017
The PEOPLE, etc., respondent, v. Mark J. MENDOZA, appellant.
Thomas T. Keating, Dobbs Ferry, NY, for appellant. Robert Tendy, District Attorney, Carmel, NY (Melissa Lynch of counsel), for respondent.
Thomas T. Keating, Dobbs Ferry, NY, for appellant.
Robert Tendy, District Attorney, Carmel, NY (Melissa Lynch of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., HECTOR D. LaSALLE, VALERIE BRATHWAITE NELSON, and LINDA CHRISTOPHER, JJ.
Appeals by the defendant from two judgments of the County Court, Putnam County (Reitz, J.), both rendered October 29, 2013, convicting him of burglary in the second degree under Superior Court Information No. 251/13, and burglary in the second degree under Indictment No. 17/13, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant validly waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge to the factual sufficiency of his plea allocutions (see People v. Smith, 146 A.D.3d 904, 904, 44 N.Y.S.3d 771 ; People v. Thompson, 143 A.D.3d 1007, 1008, 39 N.Y.S.3d 800 ). Further, the defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentences imposed were excessive (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Magnotta, 137 A.D.3d 1303, 1303, 27 N.Y.S.3d 403 ).
The defendant's contention that his pleas were not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Smith, 146 A.D.3d at 904, 44 N.Y.S.3d 771; People v. Magnotta, 137 A.D.3d at 1303, 27 N.Y.S.3d 403). However, the defendant's contention that his pleas of guilty were not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review (see People v. Williams, 27 N.Y.3d 212, 32 N.Y.S.3d 17, 51 N.E.3d 528 ). Contrary to the defendant's contention, the exception to the preservation requirement does not apply here, because the defendant's plea allocutions did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the pleas (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Hardman, 135 A.D.3d 785, 786, 22 N.Y.S.3d 590 ). In any event, the record as a whole affirmatively discloses that the defendant entered his pleas of guilty knowingly and voluntarily (see People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. May, 138 A.D.3d 1146, 1146, 30 N.Y.S.3d 327 ).
To the extent the defendant contends that he was deprived of the effective assistance of counsel because counsel failed to pursue certain pretrial motion practice, by pleading guilty, the defendant forfeited appellate review of this claim, which did not directly involve the plea negotiation process (see People v. Tarrant, 114 A.D.3d 710, 710–711, 979 N.Y.S.2d 827 ; People v. Moshier, 110 A.D.3d 832, 833, 972 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.