| People v VanDeViver |
| 2008 NY Slip Op 08771 [56 AD3d 1118] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JackVanDeViver, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Hannah Stith Long of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedMarch 30, 2007. The judgment convicted defendant, upon his plea of guilty, of conspiracy in thesecond degree and criminal possession of a controlled substance in the third degree (two counts).
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 ofone count of conspiracy in the second degree (Penal Law § 105.15) and two counts ofcriminal possession of a controlled substance in the third degree (§ 220.16 [1]). Contraryto the contention of defendant, the record establishes that he knowingly, voluntarily andintelligently waived his right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People vBaxter, 302 AD2d 950, 951 [2003], lv denied 99 NY2d 652 [2003]). Although thecontention of defendant that his plea was not knowingly, intelligently and voluntarily enteredsurvives his valid waiver of the right to appeal, defendant failed to preserve that contention forour review by failing to move to withdraw the plea or to vacate the judgment of conviction on thegrounds now raised (see People vMoore, 6 AD3d 1076 [2004], lv denied 3 NY3d 661 [2004]). In any event,defendant's contention lacks merit. We conclude that the plea was voluntary despite defendant's"rote answers of 'yes' or 'no' " to County Court's inquiries (People v Wilson, 38 AD3d 1348 [2007], lv denied 9 NY3d927 [2007]), and the record further establishes that "defendant was rational and coherent duringthe entire plea proceeding" (People vRodriguez, 28 AD3d 403, 404 [2006], lv denied 7 NY3d 817 [2006]).
Defendant also failed to preserve for our review his contention that the court erred inenhancing his sentence without affording him the opportunity to withdraw his plea (seeCPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]; People v Perry, 252AD2d 990 [1998], lv denied 92 NY2d 929 [1998]). In any event, that contention lacksmerit. Defendant violated the plea agreement by failing to appear on the scheduled sentencingdate, and the court thus "was no longer bound by the plea promise and could properly impose anenhanced sentence" (People v Figgins, 87 NY2d 840, 841 [1995]).[*2]
To the extent that the further contention of defendant thathe was denied effective assistance of counsel is based on matters outside the record, he mustraise that contention by way of a motion pursuant to CPL article 440 (see People v Logan, 2 AD3d 1392[2003], lv denied 2 NY3d 742 [2004]). Although the remainder of defendant's contentionconcerns matters that appear on the record before us, we conclude that, to the extent that itsurvives the plea and defendant's waiver of the right to appeal (see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), it is lacking in merit (see generallyPeople v Ford, 86 NY2d 397, 404 [1995]). Finally, because the court advised defendant ofthe maximum sentence that could be imposed upon his failure to appear at sentencing, "thewaiver by defendant of the right to appeal encompasses [his] further contention that the enhancedsentence is unduly harsh or severe" (People v Jackson, 34 AD3d 1318, 1319 [2006], lv denied 8NY3d 923 [2007]; see People v Milczakowskyj, 286 AD2d 928 [2001], lv denied97 NY2d 657 [2001]). Present—Hurlbutt, J.P., Smith, Centra, Fahey and Gorski, JJ.