| People v First |
| 2009 NY Slip Op 03640 [62 AD3d 1043] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Edward First,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Shannon K. Corbitt of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered May 2,2008 in Albany County, convicting defendant upon his plea of guilty of the crime of rape in thefirst degree.
Defendant pleaded guilty to one count of rape in the first degree in satisfaction of amulticount indictment alleging various counts of rape, criminal sexual act and predatory sexualassault. As a condition of the plea, he waived his right to appeal, both on the record and inwriting. Thereafter, prior to sentencing, defendant made a pro se motion to withdraw his guiltyplea, arguing that he was innocent and only pleaded guilty as a result of undue pressure from hisattorney. Supreme Court denied that motion and sentenced him, as a second felony offender, tothe agreed-upon sentence of 17 years in prison with 10 years of postrelease supervision.
Initially, we note that "defendant's challenge to the voluntariness of his plea both surviveshis waiver of appeal and has been preserved for our review by his timely motion to withdraw hisplea" (People v Morrishaw, 56AD3d 895, 896 [2008]). Upon review of this record, however, we find defendant'scontention unavailing. The plea allocution reveals that Supreme Court advised defendant of theconsequences of pleading guilty, including his waiver of the right to appeal. Defendant indicatedthat he understood, was freely and voluntarily entering [*2]intothe plea and was, in fact, guilty of the charged crime. Defendant further stated that he was notsuffering from any illness, was not incapacitated by drugs or alcohol and was satisfied with theservices of his attorney. Thus, his plea was knowing and voluntary.
Next, although defendant maintains that Supreme Court abused its discretion in denying hismotion to withdraw his plea, we are unpersuaded that he produced proof of "innocence, fraud ormistake in the inducement" of the plea (People v Ellis, 43 AD3d 485, 486 [2007], lv denied 9NY3d 961 [2007] [internal quotation marks and citations omitted]). Contrary to defendant'sassertion, the hearsay excerpts from the victim's medical reports do not establish his claim ofinnocence with respect to the subject crime. Furthermore, his conclusory claim that he wasconfused or under duress at the time of his plea is belied by the record (see People v Phillips, 41 AD3d969, 970 [2007]), which includes defendant's acknowledgment during the plea that he hadsufficient time for reflection, fully understood the proceedings and was satisfied with hisattorney's services (see generally Peoplev Singletary, 51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741 [2008]).Under these circumstances, we find no basis to conclude that the court erred in denying hismotion to withdraw his guilty plea (see People v Ellis, 43 AD3d at 486).
Finally, defendant seeks to challenge the propriety of a photo array by which he wasidentified by the victim and another witness, however, he is barred from doing so by his waiverof the right to appeal (see People vMcMillan, 55 AD3d 1064, 1066 [2008], lv denied 11 NY3d 899 [2008]).Although defendant contends that his waiver is not valid, we do not agree. The recorddemonstrates that Supreme Court's admonitions to defendant, together with the written waiverexecuted at that time, thoroughly apprised defendant that, among other things, his right to appealis distinct from those rights forfeited upon a plea of guilty. Furthermore, defendantacknowledged that, after consultation with counsel, he was freely relinquishing his right toappeal in consideration of the plea bargain. Accordingly, we conclude that defendant's waiver ofthe right to appeal was knowing and voluntary (see People v Lewis, 48 AD3d 880, 881 [2008]), thereby precludingconsideration of all issues encompassed therein.
Mercure, Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.