| People v Thomas |
| 2008 NY Slip Op 08938 [56 AD3d 1240] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Marshon A.Thomas, Appellant. |
—[*1] Marshon A. Thomas, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered July29, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aweapon 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 oftwo counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1],[former (4)]). Contrary to the contention of defendant, we conclude that he validly waived hisright to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]). The challenge bydefendant to the factual sufficiency of the plea allocution does not survive his valid waiver of theright to appeal (People v Dean, 48 AD3d 1244 [2008], lv denied 10 NY3d 839[2008]). The contention of defendant that he was denied due process based on prosecutorialmisconduct is also encompassed by his valid waiver of the right to appeal (see People vFifield, 24 AD3d 1221, 1223 [2005], lv denied 6 NY3d 775 [2006]). We reject thecontention of defendant that County Court abused its discretion in denying his motion towithdraw the plea without conducting a hearing (see People v Farley, 34 AD3d 1229[2006], lv denied 8 NY3d 880 [2007]).
To the extent that the contention of defendant that he was denied effective assistance ofcounsel survives the plea and his waiver of the right to appeal (see People v Santos, 37AD3d 1141 [2007], lv denied 8 NY3d 950 [2007]), we conclude that it is without merit(see Fifield, 24 AD3d at 1222; see generally People v Ford, 86 NY2d 397, 404[1995]). Defendant's challenge to the voluntariness of the plea survives the appeal waiver, butdefendant's "factual recitation 'did not negate any element of th[e] crime[s] or call into doubt hisguilt or the voluntariness of the plea, so as to require further inquiry by County Court' "(People v Wyant, 47 AD3d 1068, 1069 [2008], lv denied 10 NY3d 873 [2008],quoting People v Simmons, 27 AD3d 786, 786 [2006], lv denied 7 NY3d 763[2006]). Contrary to the further contention of defendant, he was properly sentenced as apersistent violent felony offender (see People v Figgins, 48 AD3d 1042, 1043 [2008],lv denied 10 NY3d 840 [2008]). Present—Hurlbutt, J.P., Smith, Green, Pine andGorski, JJ.