Opinion
KA 01-01912
May 2, 2003.
Appeal from a judgment of Lewis County Court (McGuire, J.), entered September 7, 2000, convicting defendant after a jury trial of, inter alia, robbery in the second degree.
BONNIE BURGIO, WATERTOWN, FOR DEFENDANT-APPELLANT.
MICHAEL F. YOUNG, DISTRICT ATTORNEY, LOWVILLE (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of burglary in the second degree (Penal Law 140.25), robbery in the second degree (160.10 [1]), and petit larceny ( 155.25). Contrary to the contention of defendant, his waiver of the right to appeal, entered in connection with the conviction herein and a plea agreement in satisfaction of six indictments and a superior court information, is enforceable. The waiver was knowing and voluntary, and there is no indication that it was elicited in order to "conceal error or prosecutorial overreaching" that occurred at trial ( People v. Boykin, 281 A.D.2d 708, 708; see People v Holmes, 294 A.D.2d 871, 872, lv denied 98 N.Y.2d 730). In fact, defendant initiated the waiver of the right to appeal with the apparent motive to minimize his period of incarceration, and he was in fact sentenced to concurrent terms of incarceration. To the extent that defendant contends that he received ineffective assistance of counsel because defense counsel had defendant waive his right to appeal, that contention is without merit. Defendant received a benefit as a result of the waiver, i.e., a shorter period of incarceration, and thus defendant failed to demonstrate the absence of a strategic or other legitimate explanation for the waiver ( see generally People v. Benevento, 91 N.Y.2d 708, 712).
Defendant further contends that defense counsel was ineffective in failing to challenge a prospective juror for cause or to exercise a peremptory challenge with respect to that prospective juror. Even assuming, arguendo, that defendant's contention survives the waiver of the right to appeal, we conclude that it is without merit. Defense counsel's alleged failure in that respect does not by itself constitute ineffective assistance ( see People v. Hinton [appeal No. 1], 302 A.D.2d 1008 [Feb. 7, 2003]). While defense counsel's representation may not have been error-free, the record as a whole establishes that it was meaningful ( see People v. Baldi, 54 N.Y.2d 137, 147; People v Workman, 277 A.D.2d 1029, 1032, lv denied 96 N.Y.2d 764; People v. Claitt, 222 A.D.2d 1038, lv denied 88 N.Y.2d 982). County Court did not inform defendant of the potential period of incarceration and thus the waiver of the right to appeal does not encompass defendant's challenge to the severity of the sentence ( see People v. Webb, 299 A.D.2d 955, lv denied 99 N.Y.2d 565; see generally People v. Lococo, 92 N.Y.2d 825, 827). The sentence, however, is neither unduly harsh nor severe. Defendant's remaining contentions do not survive the waiver of the right to appeal ( see People v. Govan, 199 A.D.2d 815, 816, lv denied 83 N.Y.2d 853; People v. Korona, 197 A.D.2d 788, 790-791, lv denied 82 N.Y.2d 926).