| People v Chaney |
| 2010 NY Slip Op 01549 [70 AD3d 1251] |
| February 25, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Nakia T.Chaney, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the County Court of Schenectady County (Giardino,J.), rendered January 31, 2008, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree, and (2) by permission, froman order of said court (Drago, J.), entered March 17, 2009, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant pleaded guilty to attempted criminal sale of a controlled substance in the thirddegree and waived his right to appeal. After considering whether to order defendant's placementin a drug rehabilitation program, County Court declined to order placement due to defendant'slengthy criminal history and sentenced him to five years in prison with three years of postreleasesupervision. When defendant later moved to vacate the judgment pursuant to CPL 440.10 on theground that he had received ineffective assistance from the attorney who represented him at thetime of his plea, County Court denied the motion. Defendant now appeals from the judgment ofconviction and, with permission, from the denial of his application for postconviction relief.
Contrary to defendant's contention that his entry of the guilty plea and waiver of the right toappeal were not knowing and voluntary because he was rushed and pressured without [*2]having the alternatives and consequences fully explained to him,the plea colloquy and the written waiver amply demonstrate that he "knowingly, intelligently andvoluntarily waived his right to appeal" (People v Ramos, 7 NY3d 737, 738 [2006];see People v Meacham, 63 AD3d 1371, 1371 [2009], lv denied 13 NY3d 798[2009]). Given the valid waiver of appeal, defendant is precluded from challenging the factualsufficiency of his plea allocution (see People v Harris, 51 AD3d 1335, 1336 [2008],lv denied 11 NY3d 789 [2008]), and his affirmative answers during County Court'sinquiry neither cast doubt on his guilt nor otherwise suggest that his plea was not voluntary(see People v Mason, 66 AD3d 1225, 1227 [2009]; People v Pringle, 10 AD3d802, 803 [2004]). Further, defendant's claim that County Court failed to uphold its promise toconsider possible drug programs is not born out by the record (see People v Oliver, 26AD3d 675, 676 [2006], lv denied 7 NY3d 760 [2006]).
Despite defendant's valid waiver of the right to appeal, we will review his allegations that hereceived the ineffective assistance of counsel insofar as they implicate the voluntariness of hisplea (see People v Walley, 63 AD3d 1284, 1285 [2009]; People v Gilmour, 61AD3d 1122, 1124 [2009], lv denied 12 NY3d 925 [2009]). It is clear, however, thatcounsel negotiated an advantageous plea to a single, reduced charge that significantly limiteddefendant's sentencing exposure. In addition, defendant unequivocally expressed in the pleacolloquy that he understood the terms of the plea agreement, including the agreed-upon range ofpossible terms of imprisonment, and that the court promised only to consider placement in arehabilitation program. Further, there is nothing in the record to support defendant's presentcontention that counsel failed to pursue the defense of agency. Inasmuch as the record casts nodoubt on the effectiveness of counsel, defendant has been afforded meaningful representation(see People v Ford, 86 NY2d 397, 404 [1995]; People v Singletary, 51 AD3d1334, 1335 [2008], lv denied 11 NY3d 741 [2008]).
Further, defendant's challenge to the sufficiency of the indictment has been forfeited by hisplea, and he has failed to allege a jurisdictional defect (see People v Champion, 20 AD3d772, 773-774 [2005]). Finally, his contention that his sentence was harsh and excessive isprecluded by his valid waiver of the right to appeal (see People v Walley, 63 AD3d at1286; People v Lopez, 52 AD3d 852, 853 [2008]).
Mercure, J.P., Spain, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment and theorder are affirmed.