People v Jackson

2008 NY Slip Op 03915 [50 AD3d 1615]

April 25, 2008

Appellate Division, Fourth Department

As corrected through Wednesday, June 18, 2008

The People of the State of New York, Respondent, v Anthony J.Jackson, Appellant.

—[*1]Charles J. Greenberg, Buffalo, for defendant-appellant.

Frank J. Clark, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered June 14, 2006.The judgment convicted defendant, upon his plea of guilty, of robbery in the second degree.

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 ofrobbery in the second degree (Penal Law § 160.10 [2] [b]). Contrary to the contention ofdefendant, the record of the plea colloquy establishes that he knowingly, intelligently andvoluntarily waived his right to appeal (see People v Tantao, 41 AD3d 1274 [2007], lv denied 9NY3d 882 [2007]). "County Court was 'not required to engage in any particular litany' in order toobtain a valid waiver of the right to appeal" (id. at 1274-1275, quoting People vMoissett, 76 NY2d 909, 910 [1990]). The valid waiver by defendant of the right to appealencompasses his challenges to the court's suppression ruling (see People v Kemp, 94NY2d 831, 833 [1999]; People vGilbert, 17 AD3d 1164 [2005], lv denied 5 NY3d 762 [2005]), and to theseverity of the sentence (see People vLopez, 6 NY3d 248, 256 [2006]). That valid waiver also encompasses defendant'schallenge to the factual sufficiency of the plea allocution (see People v McKay, 5 AD3d 1040 [2004], lv denied 2NY3d 803 [2004]; People v Carlton,2 AD3d 1353 [2003], lv denied 1 NY3d 625 [2004]) and, in any event, defendantfailed to preserve that challenge for our review by failing to move to withdraw the plea or tovacate the judgment of conviction (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Hamilton, 45 AD3d 1396[2007], lv denied 10 NY3d 765 [2008]; Carlton, 2 AD3d at 1353). This case doesnot fall within the rare exception to the preservation requirement inasmuch as the plea allocutiondoes not "cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question thevoluntariness of the plea" (Lopez, 71 NY2d at 666). The further contention of defendantthat he was denied effective assistance of counsel does not survive his guilty plea or his waiver ofthe right to appeal inasmuch as he failed to demonstrate " 'that the plea bargaining process wasinfected by [the] allegedly ineffective assistance or that defendant entered the plea because of hisattorney['s] allegedly poor performance' " (People v Leonard, 37 AD3d 1148, 1149 [2007], lv denied 8NY3d 947 [2007]). Present—Scudder, P.J., Martoche, Smith, Lunn and Peradotto, JJ.