| People v Cooper |
| 2010 NY Slip Op 09686 [79 AD3d 1684] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Atoo V.Cooper, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Frank A. Seminerio of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedOctober 31, 2008. The judgment convicted defendant, upon his plea of guilty, of attemptedassault in the second 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,of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [7]). As thePeople correctly concede, the record fails to establish that defendant's waiver of the right toappeal is valid because there is no indication that County Court explained "that the waiver of theright to appeal is separate and distinct from the other rights that are forfeited by the plea" (People v Hernandez, 63 AD3d1615, 1615 [2009], lv denied 13 NY3d 745 [2009]). Although the contention ofdefendant that the plea was not voluntarily, knowingly and intelligently entered survives even avalid waiver of the right to appeal, we conclude that defendant failed to preserve that contentionfor our review because he failed to move to withdraw the plea or to vacate the judgment ofconviction (see People v Secrist, 74AD3d 1853 [2010]). This case does not fall within the rare exception to the preservationrequirement because nothing in the plea colloquy casts significant doubt on defendant's guilt orthe voluntariness of the plea (see People v Lopez, 71 NY2d 662, 666 [1988]).
Defendant further contends that he was denied effective assistance of counsel based on analleged conflict of interest with respect to defense counsel assigned to represent him duringsentencing. To the extent that defendant's contention is not forfeited by the plea (see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), it is lacking in merit (see generallyPeople v Ford, 86 NY2d 397, 404 [1995]). Defendant failed to "demonstrate that the conductof his defense was in fact affected by the operation of the conflict of interest" (People vAlicea, 61 NY2d 23, 31 [1983]; see People v Knight, 280 AD2d 937, 939-940[2001]). Thus, contrary to the contention of defendant, we conclude that he received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Smith, J.P., Centra, Fahey, Peradotto and Pine, JJ.