| People v McCray |
| 2016 NY Slip Op 03903 [139 AD3d 1235] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1](May 19, 2016)
| The People of the State of New York, Respondent, v Juan Stephan McCray, Appellant. |
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered August 13, 2010, convicting defendant upon his plea of guilty ofthe crimes of burglary in the first degree and assault in the first degree.
In satisfaction of a 16-count indictment, defendant pleaded guilty to burglary in thefirst degree and assault in the first degree pursuant to a plea agreement that included awaiver of appeal. The charges stem from a home invasion on November 8, 2009 duringwhich defendant severely beat an 80-year-old woman, causing serious physical injuries,and choked her 93-year-old husband, thereafter stealing their personal property andvehicle. Consistent with the agreement, County Court sentenced defendant, as apersistent violent felony offender, to concurrent prison terms of 22 years to life, and henow appeals.[FN*]
Initially, defendant's claim that his guilty plea was not knowing, voluntary andintelligent, which survives an appeal waiver, was not preserved by an appropriatepostallocution motion to withdraw his plea (see CPL 220.60 [3]; People v Burritt, 127 AD3d1433, 1434 [2015]). Contrary to his claim, when he suggested during the pleaallocution that he had been [*2]intoxicated at the time ofthese crimes and had little recall of them, County Court made extensive further inquiryestablishing that he had discussed potential defenses with counsel, understood that if hepleaded guilty such defenses would never be considered, and expressly waived anintoxication defense, thereafter unequivocally allocuting to the crimes. Thus, the narrowexception to the preservation requirement was not triggered here (see People vLopez, 71 NY2d 662, 664-665 [1988]; People v Broomfield, 128 AD3d 1271, 1271-1272 [2015],lv denied 26 NY3d 1086 [2015]). Also unpreserved is his challenge to the factualsufficiency of the plea and, in any event, he "was not required to recite the elements ofhis crime or engage in a factual exposition" as his "affirmative and unequivocalresponses" to the court's inquiries were sufficient (People v Davis, 136 AD3d 1220, 1221 [2016] [internalquotation marks and citation omitted]).
With regard to defendant's claim that his plea was impacted because he did not havehis reading glasses that had been taken into evidence upon his arrest, the record reflectsthat he was provided with an alternate pair of eyeglasses, and his only request was thathis glasses be returned before he was sent to prison. Nothing in the record supports hiscontention that this affected his understanding of the evidence or plea terms orundermined the voluntariness of his plea. In any event, were we to address the foregoingclaims challenging his plea, we would find that he was adequately advised of theconsequences of entering a guilty plea, understood and freely accepted the plea terms,and that his plea was a "knowing, voluntary and intelligent choice among alternativecourses of action" (People vConceicao, 26 NY3d 375, 382 [2015]; see People v Fiumefreddo, 82NY2d 536, 543 [1993]; Peoplev Taylor, 135 AD3d 1237, 1237 [2016]).
We also find that defendant's appeal waiver is valid (see People v Sanders, 25 NY3d337, 340-341 [2015]). Prior to eliciting an oral appeal waiver, County Courtadequately explained it to defendant, and thereafter ensured that he reviewed the writtenwaiver with counsel in court before signing it, making clear that it was separate anddistinct from the rights automatically forfeited upon his guilty plea (see People v Lopez, 6 NY3d248, 256 [2006]; People vMiner, 120 AD3d 1449, 1450 [2014]). Given the valid appeal waiver,defendant's claim that he was deprived of effective representation is precluded except tothe extent that it impacted upon the voluntariness of his plea (see People v Lopez,6 NY3d at 256). As he received an advantageous plea and "nothing in the record castsdoubt upon the apparent effectiveness of counsel" (People v Beekman, 134 AD3d 1355, 1356 [2015] [internalquotation marks and citation omitted]) or the voluntariness of his plea, we find that hewas afforded meaningful representation (see People v Benevento, 91 NY2d 708,712 [1998]). Defendant's remaining claims also lack merit.
McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgmentis affirmed.
Footnote *:This Court rejected aprevious Anders brief in this appeal (119 AD3d 1235 [2014]).