| People v Wright |
| 2009 NY Slip Op 06886 [66 AD3d 1334] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Leon F.Wright, III, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered May15, 2007. The judgment convicted defendant, upon his plea of guilty, of burglary in the firstdegree.
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]). We reject the contention ofdefendant that his waiver of the right to appeal was invalid. "[T]he record establishes thatCounty Court 'engage[d] the defendant in an adequate colloquy to ensure that the waiver of theright to appeal was a knowing and voluntary choice' " (People v Glasper, 46 AD3d 1401, 1401 [2007], lv denied10 NY3d 863 [2008]). Defendant further contends that the court abused its discretion in denyinghis motion to withdraw his plea because it was coerced and was not knowingly and intelligentlyentered. Although that contention survives defendant's valid waiver of the right to appeal, weconclude that it is without merit (see id.). Indeed, defendant's assertions of innocence andcoercion were conclusory and belied by defendant's statements during the plea colloquy (see People v Worthy, 46 AD3d1382 [2007], lv denied 10 NY3d 773 [2008]; People v Adams, 45 AD3d 1346 [2007]; People v Polite,259 AD2d 566, 567 [1999], lv denied 93 NY2d 1025 [1999]). The contention ofdefendant that the court erred in denying his motion to dismiss the indictment withoutconducting a Clayton hearing is forfeited by the plea and does not survive his validwaiver of the right to appeal (seegenerally People v Cortes, 44 AD3d 538 [2007], lv denied 9 NY3d 1032[2008]). The valid waiver by defendant of the right to appeal also encompasses his challenge tothe severity of the sentence (see Peoplev Lopez, 6 NY3d 248, 255-256 [2006]; People v Hidalgo, 91 NY2d 733, 737[1998]). The remaining contention of defendant that he was denied effective assistance ofcounsel does not survive the plea or the waiver by defendant of the right to appeal becausedefendant failed to demonstrate that "the plea bargaining process was infected by [the] allegedlyineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poorperformance" (People v Robinson,39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internal quotationmarks omitted]; see People v Perillo, 300 AD2d 1097 [2002], lv denied 99 NY2d618 [2003]). Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.