| People v Walley |
| 2009 NY Slip Op 04765 [63 AD3d 1284] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TyshawnWalley, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered October 15, 2007, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree.
In June 2007, defendant was charged by indictment with criminal possession of a controlledsubstance in the third degree, criminal possession of a controlled substance in the fourth degreeand loitering in the first degree. After initially rejecting a plea offer, defendant ultimatelypleaded guilty to criminal possession of a controlled substance in the fourth degree in fullsatisfaction of all three counts contained in the indictment, and he was subsequently sentenced asa second felony offender to a prison term of four years, with two years of postreleasesupervision. At the time he entered his plea, defendant agreed to waive his right to appeal andexecuted a written waiver to that effect with the assistance of counsel. At his sentencing,defendant stated that he was dissatisfied with counsel and claimed that he did not fullyunderstand all of his rights when he entered his plea. County Court reviewed the content ofdefendant's plea allocution and, in particular, the description of the rights given to defendant thathe agreed to waive when he entered his plea. After concluding that defendant had knowingly andintelligently entered his guilty plea, County Court imposed sentence pursuant to the terms of thenegotiated plea agreement. Defendant now appeals, claiming that he did not receive the effective[*2]assistance of counsel and his plea, as well as his waiver ofthe right to appeal, were involuntarily entered. Defendant also claims that his sentence was harshand excessive and should be reduced in the interest of justice.
Initially, while defendant claims that his waiver of the right to appeal was not voluntary, therecord reveals that the consequences of such a waiver were clearly and adequately explained todefendant by County Court and this explanation was reinforced by the content of a writtenwaiver of appeal form that defendant executed with the assistance of counsel (see People v Lopez, 52 AD3d852, 853 [2008]; People vStokely, 49 AD3d 966, 968 [2008]). Therefore, we find, contrary to defendant'scontention, that he voluntarily waived his right to appeal.
Despite this finding, defendant's claim of ineffective assistance of counsel survives thewaiver of his right to appeal because, as made, it raises an issue as to the voluntariness of hisguilty plea (see People v Gilmour,61 AD3d 1122, 1124 [2009]; People v Fitzgerald, 56 AD3d 811, 812 [2008]; People v Morelli, 46 AD3d 1215,1217 [2007], lv denied 10 NY3d 814 [2008]).[FN*]Having reviewed this claim, we find that it is belied by the record. Specifically, defendant arguesthat his counsel advised him to plead guilty before ever reviewing a laboratory report regardingthe findings of a chemical analysis of the substance found on defendant's possession at the timeof his arrest. However, the record establishes that defense counsel was, in fact, provided with areport of a field test performed at the time of defendant's arrest that found that the substance inhis possession tested positive for the presence of crack cocaine. In addition, during his pleaallocution, County Court inquired, and defendant confirmed, that he had sufficient time to conferwith counsel prior to entering the plea, was satisfied with his representation, and was under noemotional or medical disability or under the influence of any substance that prevented him frommaking an intelligent and voluntary decision to enter a guilty plea. Moreover, defense counselwas able to negotiate an advantageous plea agreement that enabled defendant to plead guilty to areduced charge in full satisfaction of all of the charges pending against him. Therefore, we rejectdefendant's claim that he did not receive meaningful representation of counsel or that his pleawas not voluntarily entered (see Peoplev Dobrouch, 59 AD3d 781, 781-782 [2009]; People v Fitzgerald, 56 AD3d at813; People v Lopez, 52 AD3d at 853; People v Henning, 2 AD3d 979, 980 [2003], lv denied 2NY3d 740 [2004]).
Finally, as defendant executed a valid waiver of his right to appeal, his claim that thebargained-for sentence was harsh and excessive is precluded (see People v Borom, 55 AD3d 1041, 1042 [2008]; People v Jeske, 55 AD3d 1057,1058-1059 [2008], lv denied 11 NY3d 898 [2008]).
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: For the purposes ofpreservation, we conclude that defendant's pro se challenge to the effectiveness of his counselbefore County Court at sentencing constituted a motion to vacate his plea and, therefore,preserved this claim for the purposes of appeal (see People v Rubeo, 60 AD3d 1206, 1207 [2009]; People vDawson, 278 AD2d 665, 667 [2000], lv denied 96 NY2d 799 [2001]).