| People v Kapp |
| 2009 NY Slip Op 00806 [59 AD3d 974] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joshua Kapp,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedOctober 23, 2006. The judgment convicted defendant, upon his plea of guilty, of burglary in thefirst 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 ofburglary in the first degree (Penal Law § 140.30 [2]). Contrary to the contentions ofdefendant, we conclude that his waiver of the right to appeal is valid (see People v Lopez, 6 NY3d 248,256 [2006]), and that it is not void as against public policy (see People v Carmody, 53 AD3d 1048 [2008], lv denied11 NY3d 830 [2008]; see generally People v Muniz, 91 NY2d 570, 573-575 [1998];People v Callahan, 80 NY2d 273, 280 [1992]; People v Seaberg, 74 NY2d 1, 7-10[1989]). The further contention of defendant that he was denied effective assistance of counselsurvives his guilty plea and valid waiver of the right to appeal only insofar as he contends " 'thathis plea was infected by the allegedly ineffective assistance and that he entered the plea becauseof his attorney's poor performance' " (People v Neal, 56 AD3d 1211 [2008]; see People v Dean, 48 AD3d1244, 1245 [2008], lv denied 10 NY3d 839 [2008]; see also People vPetgen, 55 NY2d 529, 534-535 [1982], rearg denied 57 NY2d 674 [1982]). Thatcontention, however, is belied by the statements of defendant during the plea colloquy that hewas satisfied with the representation provided by defense counsel (see People v Farley, 34 AD3d1229 [2006], lv denied 8 NY3d 880 [2007]; People v Dean, 302 AD2d 951[2003]; People v Forshey, 294 AD2d 868 [2002], lv denied 98 NY2d 675[2002]). We have considered defendant's remaining contentions and conclude that they arewithout merit. Present—Smith, J.P., Centra, Fahey, Peradotto and Pine, JJ.