| People v Phillips |
| 2008 NY Slip Op 08816 [56 AD3d 1168] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ralph B.Phillips, Appellant. (Appeal No. 2.) |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Richard C. Kloch, Sr., A.J.),rendered December 19, 2006. The judgment convicted defendant, upon his plea of guilty, ofescape in the first 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,of escape in the first degree (Penal Law § 205.15 [1]). Contrary to the contention ofdefendant, we conclude that his waiver of the right to appeal is valid (see generally People v Lopez, 6 NY3d248, 256 [2006]). Although the further contention of defendant that his plea was notknowing, voluntary and intelligent survives his valid waiver of the right to appeal and hepreserved that contention for our review (see generally People v DeJesus, 248 AD2d1023 [1998], lv denied 92 NY2d 878 [1998]), we conclude that is belied by the record.We also reject the contention of defendant that Supreme Court abused its discretion in denyinghis motion to withdraw the plea. Where, as here, there is no " 'evidence of innocence, fraud, ormistake [in the inducement of] the plea,' " the court's refusal to permit a defendant to withdrawhis or her plea does not constitute an abuse of discretion (People v Thomas, 17 AD3d 1047, 1047 [2005], lv denied 5NY3d 770 [2005]; see People vSeeber, 4 NY3d 780 [2005]; People v Phillips, 56 AD3d — [2008]).Furthermore, to the extent that the contention of defendant that the court abused its discretion indenying his motion seeking to discharge defense counsel survives the plea and defendant's validwaiver of the right to appeal, we conclude that it is lacking in merit (see Phillips, 56AD3d at —).
The further contention of defendant that the court erred in sentencing him as a persistentfelony offender because Penal Law § 70.10 and CPL 400.20 are unconstitutional underApprendi v New Jersey (530 US 466 [2000]) is not preserved for our review (see People v Daniels, 5 NY3d 738,740 [2005], cert denied 546 US 988 [2005]). In any event, that contention is withoutmerit (see People v Rivera, 5 NY3d61, 66-68 [2005], cert denied 546 US 984 [2005]). Finally, the challenge bydefendant to the severity of the sentence is encompassed by his waiver of the right to appeal(see Lopez, 6 NY3d at 255). Present—Scudder, P.J., Hurlbutt, Lunn, Green andGorski, JJ.