| People v Morrishaw |
| 2008 NY Slip Op 08558 [56 AD3d 895] |
| November 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherMorrishaw, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Matthew J. Sypniewski of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered January 17, 2007, convicting defendant upon his plea of guilty of the crime of murder inthe second degree.
Defendant was charged in a four-count indictment with murder in the second degree (twocounts) and reckless endangerment in the first degree (two counts) stemming from an incidentwherein defendant shot and killed an acquaintance who was standing in close proximity to twoother individuals. As part of his omnibus motion, defendant moved to dismiss count one(intentional murder) or count two (depraved indifference murder) of the indictment, contendingthat advancing "twin" theories of culpability rendered the indictment defective. County Courtdenied the motion, and defendant thereafter pleaded guilty to one count of murder in the seconddegree (intentional murder) and waived his right to appeal. Prior to sentencing, defendant movedto withdraw his plea asserting, among other things, that his attorney pressured him into pleadingguilty and he failed to appreciate the nature of the waiver of the right to appeal. County Courtdenied the motion, and defendant thereafter was sentenced to the agreed-upon prison term of 15years to life and ordered to pay restitution. This appeal by defendant ensued.
We affirm. Preliminarily, defendant's challenge to the voluntariness of his plea both surviveshis waiver of appeal and has been preserved for our review by his timely motion to [*2]withdraw his plea (see People v Quinones, 51 AD3d 1226, 1227 [2008], lvdenied 10 NY3d 938 [2008]; Peoplev Lee, 34 AD3d 982 [2006]). Our review of the plea allocution reveals that defendantwas fully advised of his rights, including his waiver of the right to appeal, denied being under theinfluence of any medications, denied that he had been threatened or coerced into pleading guilty,and indicated that he had thoroughly discussed the plea with counsel and was satisfied withcounsel's representation. Moreover, defendant did not make any statements during the pleaallocution that negated an element of the crime charged or called into question either his guilt orhis capacity to understand the proceedings so as to warrant further inquiry by County Court (see People v Wyant, 47 AD3d1068, 1069 [2008], lv denied 10 NY3d 873 [2008]). Under such circumstances, wefind that defendant's guilty plea was knowing, intelligent and voluntary (see People vQuinones, 51 AD3d at 1227).
We reach a similar conclusion regarding defendant's waiver of the right to appeal, which wasexplained to defendant during the allocution. Additionally, defendant executed a detailed writtenwaiver. Although defendant professed at sentencing that he failed to appreciate the nature of thewaiver, our review of the record confirms County Court's finding that defendant's waiver wasknowing, intelligent and voluntary (seePeople v Vallance, 49 AD3d 917, 918 [2008], lv denied 10 NY3d 845 [2008]).Defendant's remaining contentions, to the extent they are properly before us, have been examinedand found to be lacking in merit.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.