Opinion
2013-08-21
The PEOPLE, etc., respondent, v. Jacob C. NUGENT, appellant.
Michael G. Paul, New City, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
Michael G. Paul, New City, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly, J.), rendered June 1, 2011, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid ( see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Batista, 100 A.D.3d 650, 952 N.Y.S.2d 903). The Supreme Court's terse colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal. Although the defendant signed a written waiver of his right to appeal, he never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was foregoing ( see People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;cf. People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222). Under these circumstances, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal.
By pleading guilty, the defendant forfeited his claim that his statutory right to a speedy trial was violated ( see People v. Franco, 104 A.D.3d 790, 960 N.Y.S.2d 507).
The defendant's contention that his plea was not voluntary is unpreserved for appellate review because he did not move to vacate his plea or otherwise raise this issue before the Supreme Court ( see People v. Pryor, 11 A.D.3d 565, 782 N.Y.S.2d 803). In any event, the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170).
The issue of ineffective assistance of counsel regarding the plea bargaining process generally survives a plea of guilty ( see e.g. People v. Gedin, 46 A.D.3d 701, 847 N.Y.S.2d 231). Here, however, the defendant's contention that he did not receive the effective assistance of counsel is not reviewable because it pertains to matters outside the record ( see People v. Miller, 68 A.D.3d 1135, 892 N.Y.S.2d 152).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).