| People v James |
| 2010 NY Slip Op 02271 [71 AD3d 1465] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent v Elliott I.James, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedSeptember 2, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fourth degree.
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 ofcriminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]). We reject the contention of defendant that his waiver of the right to appeal was invalid.County 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]; see People vWright, 66 AD3d 1334 [2009]). Defendant further contends that the court abused itsdiscretion in denying his motion to withdraw the plea because it was not knowingly, voluntarilyand intelligently entered. Although that contention survives defendant's valid waiver of the rightto appeal (see Wright, 66 AD3d 1334 [2009]), it is without merit. "The unsupportedallegations of defendant that [defense counsel] pressured him into accepting the plea bargain donot warrant vacatur of his plea" (People v Price, 309 AD2d 1259 [2003], lv denied1 NY3d 578 [2003]; see People v Thornton [appeal No. 1], 167 AD2d 935 [1990],lv denied 78 NY2d 1082 [1991]). Further, "[t]he record of the plea allocution establishesthat defendant understood the proceeding and made a knowing, voluntary and intelligent plea"(Price, 309 AD2d 1259 [2003]), and there is no indication in the record that the ability ofdefendant to understand the plea proceeding was impaired based on his drug use two days priorto the proceeding (see People vSpikes, 28 AD3d 1101, 1102 [2006], lv denied 7 NY3d 818 [2006]; see also People v White, 7 AD3d921, 922-923 [2004], lv denied 3 NY3d 683 [2004]).
To the extent that the contention of defendant that he was denied effective assistance ofcounsel survives the plea and his waiver of the right to appeal (see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), it is without merit (see generallyPeople v Ford, 86 NY2d 397, 404 [1995]). Finally, the valid waiver by defendant of the rightto appeal encompasses his challenge to the court's suppression ruling (see People vKemp, 94 NY2d 831, 833 [1999];People v Eatmon, 66 AD3d 1453 [2009]). Present—Smith, J.P., Fahey, Carni,Sconiers and Pine, JJ.