Opinion
10-07-2016
The PEOPLE of the State of New York, Respondent, v. Lateek NEWTON, Defendant–Appellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for defendant-appellant. Donald G. O'Geen, District Attorney, Warsaw (Eric R. Schiener of Counsel), for respondent.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered November 19, 2014. The judgment convicted defendant, upon his plea of guilty, of attempted promoting prison contraband in the first degree.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for defendant-appellant.
Donald G. O'Geen, District Attorney, Warsaw (Eric R. Schiener of Counsel), for respondent.
MEMORANDUM:
On appeal from a judgment convicting him, upon his plea of guilty, of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25[2] ), defendant contends that his guilty plea was not voluntary, knowing and intelligent because County Court failed to inquire into a possible defense. That contention is actually a challenge to the factual sufficiency of the plea allocution (see generally People v. Hicks, 128 A.D.3d 1358, 1359, 8 N.Y.S.3d 748, lv. denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 ; People v. Rios, 93 A.D.3d 1349, 1349, 940 N.Y.S.2d 512, lv. denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 ), and is therefore encompassed by defendant's valid waiver of the right to appeal (see People v. Jamison, 71 A.D.3d 1435, 1436, 896 N.Y.S.2d 780, lv. denied 14 N.Y.3d 888, 903 N.Y.S.2d 777, 929 N.E.2d 1012 ; People v. Peters, 59 A.D.3d 928, 928, 873 N.Y.S.2d 397, lv. denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Moreover, that contention is not preserved for our review inasmuch as defendant failed to move to withdraw his plea or to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Lugg, 108 A.D.3d 1074, 1075, 968 N.Y.S.2d 785 ). This case does not fall within the rare exception to the preservation requirement inasmuch as the plea allocution neither negated an essential element of the crime nor otherwise cast doubt on the voluntariness of the plea (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).
To the extent that defendant's contention that he was denied effective assistance of counsel survives his guilty plea and valid waiver of the right to appeal (see People v. Strickland, 103 A.D.3d 1178, 1178, 958 N.Y.S.2d 640 ), we conclude that it is without merit. “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ), and that is the case here (see People v. Garner, 86 A.D.3d 955, 956, 926 N.Y.S.2d 796 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, and SCUDDER, JJ., concur.