| People v Thomas |
| 2010 NY Slip Op 03529 [72 AD3d 1483] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Steven D.Thomas, Appellant. |
—[*1]
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 criminalcontempt in the first 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 contempt in the first degree (Penal Law § 215.51 [b] [iv]). Defendant contendsthat his plea was not knowingly, voluntarily, or intelligently entered because County Court failedto recite the name of the person whom defendant called in violation of an order of protection andfailed to specify the date of the telephone call. That contention is actually a challenge to thefactual sufficiency of the plea allocution, which is encompassed by defendant's valid waiver ofthe right to appeal (see People vBailey, 49 AD3d 1258 [2008], lv denied 10 NY3d 932 [2008]). Defendant alsofailed to preserve that challenge for our review by failing to move to withdraw the plea or tovacate the judgment of conviction on that ground (see People v Lopez, 71 NY2d 662,665 [1988]), and this case does not fall within the narrow exception to the preservationrequirement (see id. at 666). Defendant further contends that he was denied effectiveassistance of counsel based on defense counsel's failure to preserve for our review his challengeto the factual sufficiency of the plea colloquy. To the extent that defendant's contention survivesthe plea and the waiver of the right to appeal (see People v Santos, 37 AD3d 1141 [2007], lv denied 8NY3d 950 [2007]), we conclude that it is lacking in merit. The record establishes that"[d]efendant received 'an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of [defense] counsel' " (People v Balanean, 55 AD3d 1353, 1353 [2008], lv denied11 NY3d 895 [2008], quoting People v Ford, 86 NY2d 397, 404 [1995]).
Defendant further contends that he was confused during the plea colloquy because "it washappening so fast" and thus that the court erred in denying his motion to withdraw the plea,which we note was not directed at a specific ground. We reject that contention inasmuch as therecord establishes that defendant responded in the affirmative when the court asked him whetherhe understood the nature of the proceedings and the plea agreement, and had discussed thematter [*2]with his attorney (see People v Alexander, 97NY2d 482, 485 [2002]; People v Beaty, 303 AD2d 965 [2003], lv denied 100NY2d 559 [2003]; People v Rickard, 262 AD2d 1073 [1999], lv denied 94 NY2d828 [1999]).
Finally, defendant's challenge to the severity of the sentence, raised in his pro sesupplemental brief, is encompassed by his valid waiver of the right to appeal (see People v Lopez, 6 NY3d 248,255-256 [2006]). In any event, the sentence is not unduly harsh or severe. Present—Smith,J.P., Carni, Pine and Gorski, JJ.