Opinion
2014–04463 Ind. No. 3604/11
06-26-2019
The PEOPLE, etc., Respondent, v. Djavaun PERRY, Appellant.
Paul Skip Laisure, New York, N.Y. (Erica Horwitz of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Zoila Del Castillo of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Zoila Del Castillo of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ann Donnelly, J.), rendered April 19, 2013, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with, inter alia, murder in the second degree based on allegations that he shot and killed a person on April 17, 2011, in Brooklyn. On April 9, 2013, the defendant pleaded guilty to murder in the second degree, in satisfaction of the indictment. In connection with the plea of guilty, the defendant waived his right to appeal.
Contrary to the defendant's contention, the record demonstrates that his waiver of his right to appeal was knowingly, voluntarily, and intelligently made (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Magnotta, 137 A.D.3d 1303, 1303, 27 N.Y.S.3d 403 ; People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371 ). However, the defendant failed to preserve this contention for appellate review, as he did not move to withdraw his plea prior to the imposition of sentence (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 221–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917 ). In any event, the record demonstrates that 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. Bennett, 122 A.D.3d 871, 872, 996 N.Y.S.2d 369 ).
The defendant also claims that he was deprived of the effective assistance of counsel. Inasmuch as this claim involves counsel's alleged deficiencies that purportedly affected the voluntariness of the defendant's plea, the defendant did not forfeit the right to raise this argument on appeal (see People v. Castillo, 161 A.D.3d 1099, 73 N.Y.S.3d 890 ; People v. Jessamy, 137 A.D.3d 1056, 1056–1057, 28 N.Y.S.3d 376 ). However, the record demonstrates that the defendant was afforded the effective assistance of counsel (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see also People v. Alexander, 159 A.D.3d 1019, 1021, 73 N.Y.S.3d 593 ; People v. Maldonado, 144 A.D.3d 706, 707, 39 N.Y.S.3d 826 ).
The defendant's valid waiver of the right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Munoz, 154 A.D.3d 881, 62 N.Y.S.3d 278 ).
RIVERA, J.P., BALKIN, MALTESE and BARROS, JJ., concur.