Opinion
No. KA 06-00394.
November 14, 2008.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered July 29, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree (two counts).
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
MARSHON A. THOMAS, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
Before: Hurlbutt, J.P., Smith, Green, Pine and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02, [former (4)]). Contrary to the contention of defendant, we conclude that he validly waived his right to appeal ( see People v Lopez, 6 NY3d 248, 256). The challenge by defendant to the factual sufficiency of the plea allocution does not survive his valid waiver of the right to appeal ( People v Dean, 48 AD3d 1244, lv denied 10 NY3d 839). The contention of defendant that he was denied due process based on prosecutorial misconduct is also encompassed by his valid waiver of the right to appeal ( see People v Fifield, 24 AD3d 1221, 1223, lv denied 6 NY3d 775). We reject the contention of defendant that County Court abused its discretion in denying his motion to withdraw the plea without conducting a hearing ( see People v Farley, 34 AD3d 1229, lv denied 8 NY3d 880).
To the extent that the contention of defendant that he was denied effective assistance of counsel survives the plea and his waiver of the right to appeal ( see People v Santos, 37 AD3d 1141, lv denied 8 NY3d 950), we conclude that it is without merit ( see Fifield, 24 AD3d at 1222; see generally People v Ford, 86 NY2d 397, 404). Defendant's challenge to the voluntariness of the plea survives the appeal waiver, but defendant's "factual recitation `did not negate any element of th[e] crime[s] or call into doubt his guilt or the voluntariness of the plea, so as to require further inquiry by County Court'" ( People v Wyant, 47 AD3d 1068, 1069, lv denied 10 NY3d 873, quoting People v Simmons, 27 AD3d 786, 786, lv denied 7 NY3d 763). Contrary to the further contention of defendant, he was properly sentenced as a persistent violent felony offender ( see People v Figgins, 48 AD3d 1042, 1043, lv denied 10 NY3d 840).