| People v Glynn |
| 2010 NY Slip Op 04070 [73 AD3d 1290] |
| May 13, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Matthew J.Glynn, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered January 29, 2009, convicting defendant upon his plea of guilty of the crime ofattempted criminal sexual act in the first degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with attempted criminal sexual act in the first degree. He subsequently pleadedguilty to this charge, waived his right to appeal and was sentenced to six years in prison to befollowed by 10 years of postrelease supervision. Defendant appeals, and we affirm.
Defendant's waiver of appeal is valid. While County Court should not have "lump[ed] thatright into the panoply of trial rights automatically forfeited upon pleading guilty" during the pleacolloquy (People v Lopez, 6 NY3d248, 257 [2006]), defendant executed a detailed written waiver that adequately described thescope of the appellate rights waived, acknowledged that he had been advised by counsel of hisright to appeal, and confirmed that he was intentionally waiving those rights after having beengiven sufficient time to discuss the consequences of the waiver with counsel. The written appealwaiver initially listed a period of postrelease supervision that differed from that included withinthe terms of the plea agreement, but defense counsel advised the People of the error prior to theplea colloquy, the correct term of postrelease supervision was recited up front as one of the pleaterms, and the written waiver was corrected [*2]during theallocution. Defendant then confirmed that counsel had explained to him the significance andconsequences of the waiver and that he understood what it meant. Under these circumstances,the record as a whole establishes that defendant knowingly, intelligently and voluntarily waivedhis right to appeal (see People vRamos, 7 NY3d 737, 738 [2006]; People v Gilmour, 61 AD3d 1122, 1123 [2009], lv denied12 NY3d 925 [2009]; People vRamirez, 42 AD3d 671, 671-672 [2007]).
Defendant's challenges to the voluntariness and factual sufficiency of his guilty plea are notpreserved for our review given his failure to move to withdraw the plea or vacate the judgmentof conviction (see People v Smith,57 AD3d 1237, 1237 [2008]; People v Phillips, 28 AD3d 939, 939 [2006], lv denied 7NY3d 761 [2006]). Inasmuch as defendant did not make any statements during the pleaallocution that cast doubt on his guilt or otherwise called into question the voluntariness of hisplea, the narrow exception to the preservation rule is not applicable (see People v Lopez,71 NY2d 662, 666 [1988]; People v Smith, 57 AD3d at 1237). In any event, despitedefendant's contentions to the contrary, he verbally confirmed during the plea allocution that hewas not on any medication or drugs that impaired his ability to comprehend the proceedings, andit was not necessary for him to personally recite either the elements or the underlying facts of thecrime (see People v Smith, 57 AD3d at 1237; People v Williams, 35 AD3d 971, 972 [2006], lv denied 8NY3d 928 [2007]; People v Bagley,34 AD3d 992, 993 [2006], lv denied 8 NY3d 878 [2007]).
Defendant's assertion that he was denied the effective assistance of counsel "is precluded byhis valid appeal waiver except insofar as the alleged ineffectiveness could be construed to haveimpacted upon the voluntariness of his plea and, to that extent, the absence of a motion towithdraw the plea or vacate the judgment of conviction renders the matter unpreserved" (People v Crudup, 45 AD3d 1111,1111 [2007]; accord People vJeske, 55 AD3d 1057, 1058 [2008], lv denied 11 NY3d 898 [2008]; see People v Scitz, 67 AD3d1251, 1251-1252 [2009]). Were we to reach the issue, we would find that neither counsel'sfailure to challenge the voluntariness of statements made by defendant to police nor his failure tomove to withdraw the plea on the basis of defendant's claims of innocence contained in thepresentence report rendered his representation less than meaningful. Defendant failed to protesthis innocence at sentencing when given the opportunity to address County Court and, given thefavorable plea bargain negotiated by counsel that significantly reduced his sentencing exposure,we are satisfied that defendant was afforded meaningful representation (see People v Patnode, 60 AD3d1109, 1110-1111 [2009]; People v Jeske, 55 AD3d at 1058; People v White, 52 AD3d 950,951 [2008], lv denied 11 NY3d 742 [2008]).
Finally, defendant's claim that his sentence is harsh and excessive is precluded by his validappeal waiver (see People v Lopez, 6 NY3d at 255-257; People v Thomas, 71 AD3d 1231,1233 [2010]).
Mercure, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.