| People v Morelli |
| 2007 NY Slip Op 10409 [46 AD3d 1215] |
| December 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Philip A.Morelli, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Chenango County (Daley, J.),rendered June 1, 2006, convicting defendant upon his plea of guilty of the crimes of criminalcontempt in the first degree, burglary in the first degree (two counts), assault in the second degreeand criminal mischief in the third degree.
In September 2005, while an order of protection existed in favor of defendant's girlfriend,defendant choked her and caused her injury. Defendant waived indictment and agreed to beprosecuted by a superior court information (hereinafter SCI) charging him with, among otherthings, criminal contempt in the first degree. Despite the issuance of a new stay-away order ofprotection, in October 2005 defendant forcibly entered his girlfriend's home with a crowbar,injured her and resisted arrest. This incident led to an indictment charging defendant with, amongother things, burglary in the first degree (two counts), assault in the second degree and criminalmischief in the third degree. The People successfully moved to have the SCI and indictmentconsolidated. Defendant entered an Alford plea to the SCI's charge of criminal contemptin the first degree and the felony charges in the indictment, in response to an offer of adeterminate prison sentence between 5 and 10 years plus postrelease supervision, with a waiverof the right to appeal. County Court imposed an aggregate prison sentence of 9½ years withfive years of postrelease supervision. Defendant appeals.[*2]
By not moving to withdraw his plea or vacate thejudgment of conviction, defendant did not preserve his arguments that his waiver of appeal waseither involuntary, unknowing, or coerced (see People v Wright, 34 AD3d 940, 940 [2006], lv denied 8NY3d 886 [2007]; People vKirkland, 2 AD3d 1063, 1063 [2003]; People v Coppaway, 281 AD2d 754[2001]), or that his Alford plea was not supported by sufficient record proof (see People v Lopez, 33 AD3d1062 [2006], lv denied 8 NY3d 847 [2007]; People v Spulka, 285 AD2d840, 840 [2001], lv denied 97 NY2d 643 [2001]). In any event, County Court discussedwith defendant the strong evidence against him, the likelihood of conviction based on thatevidence and the benefits of the plea offers, such that defendant's Alford plea wassupported by the record (see People v Spulka, 285 AD2d at 841). Advising defendant ofthe potential maximum sentence, along with an evaluation of the evidence based upon the courtfile and defendant's acknowledgment of certain facts, did not constitute coercion to inducedefendant's guilty plea (see People v Lambe, 282 AD2d 776, 777 [2001]; Britt v Stateof New York, 260 AD2d 6, 12-13 [1999], lv denied 95 NY2d 753 [2000]). The courtpainstakingly explained to defendant that, in addition to proceeding to trial, two offers wereavailable: one resulting in a 10-year sentence and preserving his right to appeal, and the otherwith a sentence somewhere between 5 and 10 years, but requiring a waiver of appeal. Defendantknowingly and voluntarily chose the option that permitted him to receive a lesser sentence inexchange for his waiver of the right to appeal, acknowledging his waiver orally on the record andin writing.
Defendant's valid appeal waiver precludes any arguments that do not address County Court'sjurisdiction or defendant's constitutional rights. These nonjurisdictional, nonconstitutionalarguments include his claims that the court improperly consolidated the SCI and the indictment(see People v Loyd, 28 AD3d872 [2006], lv denied 7 NY3d 758 [2006]), the District Attorney's office should havebeen disqualified (see People v Allen, 236 AD2d 653, 653-654 [1997]; People vClute, 226 AD2d 824 [1996], lv denied 88 NY2d 1020 [1996]), the court shouldhave granted defendant's recusal motion (see People v Castricone, 19 AD3d 1101 [2005]; People v McCafferty, 1 AD3d 799,799 [2003], lv denied 2 NY3d 743 [2004]; People v Anderson, 304 AD2d 975,976 [2003], lv denied 100 NY2d 578 [2003]), and the sentence imposed was harsh andexcessive (see People v Lopez, 6NY3d 248, 256 [2006]; People vNason, 31 AD3d 818, 819 [2006], lv denied 7 NY3d 869 [2006]). Similarly,defendant's appeal waiver precludes his allegation of ineffective assistance of counsel, except tothe extent that it relates to the voluntariness of his plea; to the limited extent that it survives thewaiver, defendant failed to preserve this claim by moving to withdraw the plea or vacate thejudgment of conviction (see People vMorgan, 39 AD3d 889, 890 [2007], lv denied 9 NY3d 848 [2007]; People vBier, 307 AD2d 649, 650 [2003], lv denied 100 NY2d 618 [2003]). In any event,defendant failed to demonstrate good cause for a substitution of counsel and his assigned attorneyskillfully represented defendant's interests (see People v Linares, 2 NY3d 507, 510-512 [2004]).
Mercure, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.