| People v Masterson |
| 2008 NY Slip Op 10325 [57 AD3d 1443] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brian Masterson,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), renderedSeptember 28, 2006. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree (six counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of six counts ofrobbery in the first degree (Penal Law § 160.15 [4]), defendant contends that he was deniedeffective assistance of counsel. To the extent that the contention of defendant survives his guilty plea andvalid waiver of the right to appeal (seegenerally People v Fifield, 24 AD3d 1221, 1222 [2005], lv denied 6 NY3d 775[2006]), we conclude that it lacks merit. The record establishes that defendant "receive[d] anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel"(People v Ford, 86 NY2d 397, 404 [1995]). By failing to move to withdraw his plea or tovacate the judgment of conviction, defendant failed to preserve for our review his challenge to thefactual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]).According to defendant, the plea allocution was factually insufficient based on the alleged applicabilityof the affirmative defense that the handgun used in the robberies "was not a loaded weapon from whicha shot, readily capable of producing death or other serious physical injury, could be discharged" (PenalLaw § 160.15 [4]). Nothing in the plea allocution raised the possibility that the affirmativedefense was applicable (see People vTrapp, 15 AD3d 916 [2005], lv denied 4 NY3d 891 [2005]; People vCostanza, 244 AD2d 988 [1997]), however, and thus defendant's contention does not fall withinthe rare case exception to the preservation rule (see Lopez, 71 NY2d at 666). Finally, thevalid waiver by defendant of the right to appeal encompasses his challenge to the severity of thesentence (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91NY2d 733, 737 [1998]). Present—Martoche, J.P., Smith, Green and Pine, JJ.