| People v White |
| 2008 NY Slip Op 00297 [47 AD3d 1062] |
| January 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph J.White, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Alison M. Thorne of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered April 3, 2003, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a controlled substance in the third degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty in February 2003 to areduced count of attempted criminal sale of a controlled substance in the third degree and waivedhis right to appeal. The charge against defendant stemmed from the sale of crack cocaine to aconfidential informant in Washington Park in the City of Albany in August 2002. Thereafter,defendant, a second felony offender, was sentenced in accordance with the plea agreement to,among other things, a term of imprisonment of 7¼ to 14½ years. Defendant nowappeals.
Initially, in light of County Court's failure to adequately distinguish the right to appeal fromthose rights automatically forfeited upon a plea of guilty, defendant's oral waiver of his right toappeal was invalid (see People vLopez, 6 NY3d 248, 256 [2006]; People v Lewis, 39 AD3d 1025, 1025 [2007]; People v Guthinger, 36 AD3d1075, 1076 [2007], lv denied 8 NY3d 923 [2007]; People v Cain, 29 AD3d 1157,1157 [2006]). Accordingly, we will address all issues raised by defendant on appeal, not onlythose which survive a valid waiver.
Defendant's first contention is that his plea was not knowingly, intelligently and voluntarilymade. Notably, while defendant asserts that this issue was properly preserved for our [*2]review by means of a previous motion to vacate the judgment ofconviction, the purported motion is not contained in the record nor is any decision from CountyCourt on the matter, thus defeating the purpose of the preservation requirement. In any event,were defendant's claim properly before us, we would find it lacking in merit. Upon review of theproceedings resulting in the conviction of defendant upon his plea, we find that defendant'sunequivocal affirmative responses to County Court's factual recitation of his crime to besufficient and he was adequately apprised of and understood his rights and the ramifications ofhis plea (see People v Edwards, 43AD3d 1227, 1228 [2007]; People v Lewis, 39 AD3d at 1026; People vGuthinger, 36 AD3d at 1076). To the extent that defendant's claim relates to his counsel'srepresentation, the grounds advanced largely relate to his sentencing and, consequently, did notimpact the voluntariness of his plea (seePeople v Howard, 1 AD3d 718, 719 [2003]).
Next, defendant claims that he was denied the effective assistance of counsel. However, uponreview of the record—including his sworn statement during his plea colloquy that he wassatisfied with counsel's representation—we find nothing that casts doubt upon theeffectiveness of defendant's retained counsel (see People v Williams, 35 AD3d 971, 973 [2006], lv denied8 NY3d 928 [2007]). We are unpersuaded by defendant's assertion that counsel's failure to moveto withdraw his plea on the basis of his claims of innocence and an alibi contained in thepresentence investigation report rendered her representation less than meaningful, particularlyconsidering defendant's failure to protest when afforded an opportunity to address County Courtprior to pronouncement of his sentence. In sum, we are satisfied that defendant receivedmeaningful representation, especially in light of the favorable plea bargain negotiated by counselwhich resulted in defendant pleading to a lower level felony, a negotiated sentence that was lessthan the maximum permitted and the fact that his plea served to satisfy other uncharged crimes(see People v Baldwin, 36 AD3d1024, 1024-1025 [2007]; People v Williams, 35 AD3d at 973; People vCain, 29 AD3d at 1158).
Finally, we have reviewed defendant's claim that his bargained-for sentence was harsh andexcessive and find it to be unavailing (see People v Guthinger, 36 AD3d at 1076;People v Cain, 29 AD3d at 1157-1158).
Mercure, J.P., Peters, Rose and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.