| People v Jamison |
| 2010 NY Slip Op 02227 [71 AD3d 1435] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherJamison, Appellant. (Appeal No. 1.) |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedAugust 7, 2007. The judgment convicted defendant, upon his plea of guilty, of attemptedaggravated murder (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of three counts of attempted aggravated murder (Penal Law §§110.00, 125.26 [1] [a] [i]). We reject at the outset the contention of defendant that his waiver ofthe right to appeal is void as against public policy (see People v Muniz, 91 NY2d 570,575 [1998]). Also contrary to the contention of defendant, the record establishes that his waiverof the right to appeal was voluntary, knowing and intelligent (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Grimes, 53 AD3d 1055,1055-1056 [2008], lv denied 11 NY3d 789 [2008]).
The further contention of defendant that his plea was not voluntary, knowing and intelligentbecause he did not recite the underlying facts of the crimes to which he pleaded guilty but simplyreplied to County Court's questions with monosyllabic responses is actually a challenge to thefactual sufficiency of the plea allocution. That challenge is encompassed by the valid waiver ofthe right to appeal (see People vBrown, 66 AD3d 1385 [2009]; People v Peters, 59 AD3d 928 [2009], lv denied 12 NY3d820 [2009]; People v Bailey, 49AD3d 1258 [2008], lv denied 10 NY3d 932 [2008]) and, in any event, defendantfailed to preserve that challenge for our review by moving to withdraw the plea or by raising thatground in his motion to vacate the judgment of conviction (see People v Lopez, 71NY2d 662, 665 [1988]; Bailey, 49 AD3d at 1259). With respect to the merits of thatchallenge, we note that "there is no requirement that defendant recite the underlying facts of thecrime[s] to which he is pleading guilty" (Bailey, 49 AD3d at 1259; see People v VanDeViver, 56 AD3d1118 [2008], lv denied 11 NY3d 931, 12 NY3d 788 [2009]).
In appeal No. 2, defendant appeals from an order denying his pro se CPL 440.30 motion tovacate the judgment of conviction. This Court granted defendant leave to appeal from that orderpursuant to CPL 450.15 (1). We reject the contention of defendant that he was denied effectiveassistance of counsel based on defense counsel's failure to pursue the defense that defendant was[*2]not guilty by reason of mental defect. The record establishesthat defendant both understood the nature of the plea and sentence and denied any mentalincapacity during the plea proceedings (see People v Courcelle, 15 AD3d 688, 689 [2005], lv denied4 NY3d 829 [2005]), and two psychiatric evaluations conducted pursuant to CPL article 730that were completed one month after the commission of the crimes to which he pleaded guiltyindicated that defendant's prior psychiatric diagnoses did not affect the ability of defendant tounderstand the nature of the charges against him and concluded that he was competent to standtrial. We thus conclude that defendant failed to demonstrate the absence of a strategic basis fordefense counsel's failure to pursue that defense (see People v Crespo, 49 AD3d 1308 [2008]; see generallyPeople v Rivera, 71 NY2d 705, 708-709 [1988]). Indeed, the record establishes thatdefendant received an advantageous plea agreement, and nothing in the record suggests thatdefense counsel's representation was anything less than meaningful (see generally People vFord, 86 NY2d 397, 404 [1995]). Contrary to defendant's contention, the court properlydenied the motion without conducting a hearing "because, given the nature of the claimedineffective assistance, the motion could be determined on the trial record and defendant'ssubmissions on the motion" (People v Satterfield, 66 NY2d 796, 799 [1985]; seePeople v Lake, 235 AD2d 921 [1997], lv denied 89 NY2d 1091, 1096 [1997];People v Shamblee, 222 AD2d 834 [1995], lv denied 88 NY2d 994 [1996]).Present—Centra, J.P., Fahey, Peradotto, Carni and Lindley, JJ.