| People v Ashley |
| 2009 NY Slip Op 08518 [67 AD3d 1199] |
| November 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Patrick R.Ashley, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County (Rogers,J.), rendered February 28, 2008, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the first degree.
Approximately two months after being paroled on his 1999 robbery convictions, defendantattempted to rob a grocery store and shot the 71-year-old proprietor. Defendant subsequentlypleaded guilty to attempted robbery in the first degree, waived his right to appeal and wassentenced to nine years of imprisonment and five years of postrelease supervision in accordancewith a plea agreement. Defendant now appeals.
Defendant was represented by counsel and signed a written waiver as a condition of the pleaarrangement expressly waiving any right to appeal except with respect to his constitutional rightto a speedy trial, the legality of his sentence, his competency to stand trial and the voluntarinessof the waiver. During the plea proceedings, County Court advised defendant of his rights withrespect to trial and the scope of the appeal waiver. Defendant acknowledged his understanding ofthese rights and waiver thereof. Prior to sentencing, the court again advised defendant that hewas waiving his right to appeal except as to certain matters. Defendant reviewed andacknowledged his written waiver without objection. Consequently, defendant's [*2]waiver of appeal was valid and his challenge to the severity of hissentence is therefore precluded (seePeople v Lopez, 6 NY3d 248, 255-257 [2006]).
Defendant's challenge to the facial sufficiency of his plea allocution is also precluded by hisappeal waiver, although his challenge to the voluntariness of his plea is not (see People v Nesbitt, 23 AD3d836, 837 [2005], lv denied 6 NY3d 816 [2006]). We find the voluntariness ofdefendant's plea is not undermined by defendant's mere assertion, more than three months afterthe plea, of a history of mental illness and attempted suicide prior to his plea (see People vKennedy, 34 AD2d 856 [1970]; compare People v Hall, 168 AD2d 310 [1990],lv denied 77 NY2d 906 [1991]). As no evidence was offered to substantiate defendant'sclaim that his state of mind precluded a voluntary plea, County Court did not abuse its discretionin denying defendant's motion to withdraw his plea.
Defendant failed to preserve his claim that his sentence as a second violent felony offenderwas illegally predicated on the 1999 convictions in which the court failed to impose a mandatoryperiod of postrelease supervision (see Penal Law § 70.45). Defendant failed toraise that issue on direct appeal from his prior judgment of conviction (People v Ashley,278 AD2d 594 [2000]; see People vLouree, 8 NY3d 541, 545-546 [2007]), or include it in his motion to withdraw his 2007plea. Defendant has not sought leave to appeal the denial of his CPL article 440 motionschallenging the validity of his 1999 convictions and sentence (see CPL 450.15;People v Sweeter, 125 AD2d 841, 842 [1986], lv denied 69 NY2d 750 [1987];People v Kruk, 52 AD2d 969, 970 [1976]). At sentencing, defendant admitted the priorconvictions and did not controvert the prior felony conviction statement. Defendant's failure toobject to or controvert the use of his prior felony convictions or request a hearing on the issuewaived his right to challenge the predicate convictions and their validity (see CPL400.21 [3], [4]; see People v Odom,63 AD3d 408, 409 [2009], lv denied 13 NY3d 798 [2009]; People v Cruz, 56 AD3d 570[2008]).
In any event, the record indicates that defendant was aware of the mandatory postreleasesupervision component during the 1999 plea and sentencing proceedings. Although the failure toimpose a period of mandatory postrelease supervision in 1999 might have entitled defendant toresentencing on those convictions under People v Sparber (10 NY3d 457, 467 [2008]), a sentencing defectdoes not invalidate a prior conviction for purposes of adjudicating defendant's subsequent felonyoffender status (see People ex rel. Emanuel v McMann, 7 NY2d 342, 345 [1960];People v Lawrence, 37 AD2d 872, 873 [1971]; People v Couse, 34 AD2d 859[1970]).
Finally, the record reveals that defendant received meaningful representation by assignedcounsel in connection with his plea. After his plea but before sentence was imposed, defendantwas assigned new counsel because his relationship with prior counsel had deteriorated. However,County Court made no determination that service by prior counsel was ineffective. Defendant'sclaim that counsel failed to adequately argue that his state of mind rendered his plea defective isunavailing. Defendant claims that his jailhouse suicide attempt was well documented and that hewas visited by health professionals in jail shortly after his plea, yet neither defendant nor his newcounsel offered evidence to substantiate these events or defendant's claim of prior mental illness.Defendant's argument amounts to nothing more than his "mere say-so" that his state of mindvoided his plea (People v Boundy, 10 NY2d 518, 521 [1962]). In stark contrast, therecord of the plea proceedings reflects a knowing, intelligent and voluntary plea. Viewing thetotality of counsel's efforts, we find no basis for defendant's claim of ineffective assistance (see People v Ozuna, 7 NY3d 913,915 [2006]; People v Hutchinson,57 AD3d 1013, [*3]1014-1015 [2008], lv denied 12NY3d 817 [2009]).
Mercure, J.P., Lahtinen, Kane and Garry, JJ., concur. Ordered that the judgment is affirmed.