| People v Willi |
| 2011 NY Slip Op 00107 [80 AD3d 884] |
| January 13, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherM. Willi, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Spain, J.P. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered March 2, 2009, convicting defendant upon his plea of guilty of the crime of rape in thethird degree.
Pursuant to a negotiated plea, defendant waived indictment and pleaded guilty to rape in thethird degree based upon allegations that he had sexual intercourse with a female who was underthe age of 17 and a biological relative. As part of the plea, which satisfied numerous other relatedand unrelated potential charges, defendant also waived his right to appeal, and executed a writtenappeal waiver. County Court thereafter sentenced defendant to a term of four years in prison, asagreed, followed by 10 years of postrelease supervision.
Most of defendant's appellate claims are precluded by his valid and enforceable waiver of theright to appeal. During the plea colloquy, after explaining defendant's trial related rights and theconsequences of a guilty plea, County Court separately advised defendant that, as part of the pleaagreement, he would be "giving up [his] right to appeal either the plea or the sentence to a highercourt." Defendant then acknowledged his signature on the written appeal waiver, whichdelineated its meaning, and defendant affirmed to the court that his attorney had explained it tohim and that he understood it. Given the foregoing, we find that defendant effected a knowing,voluntary and intelligent waiver of his right to appeal the judgment of conviction, including anyclaim that his sentence is harsh and excessive (see People v Lopez, 6 NY3d 248, 256 [2006]; [*2]Peoplev Stoff, 74 AD3d 1640, 1641 [2010], lv denied 15 NY3d 810 [2010]).
While defendant's challenge to the voluntariness of his plea is not precluded by his appealwaiver, it is not preserved for appeal as defendant never moved to withdraw his plea or to vacatethe judgment of conviction (see Peoplev Davis, 74 AD3d 1490, 1490 [2010], lv denied 15 NY3d 850 [2010]). Further,nothing in the plea colloquy or record casts doubt on defendant's guilt or on the voluntariness ofthis very advantageous plea so as to trigger a duty of further inquiry into the voluntariness of theplea despite the lack of preservation (see People v Lopez, 71 NY2d 662, 665-666 [1988];People v Houck, 74 AD3d1476, 1477 [2010]).
Defendant's contention that his counsel's representation was ineffective is also unpreservedand precluded by the appeal waiver, except to the extent that it implicates the voluntariness of hisplea (see People v Belle, 74 AD3d1477, 1480 [2010]; People vChaney, 70 AD3d 1251, 1252 [2010], lv denied 15 NY3d 748 [2010]).Defendant's claims regarding what counsel advised him are entirely outside the record on appeal,and are more properly raised in a CPL 440.10 motion to vacate the judgment (see People v Moyer, 75 AD3d1004, 1006 [2010]; People vEchavarria, 53 AD3d 859, 863-864 [2008], lv denied 11 NY3d 832 [2008]). It isnot clear that defendant's remaining complaints regarding counsel's performance, such as thedecision to forego an omnibus motion, impacted the voluntariness of his choice to accept the pleaagreement. In any event, defendant has not demonstrated the absence of legitimate, strategicreasons for counsel's course of representation (see People v Baker, 14 NY3d 266, 270-271 [2010]). Rather, therecord reflects that counsel negotiated a favorable plea that disposed of many potential charges,and nothing in the record raises any question as to counsel's provision of meaningfulrepresentation (see People v Ford, 86 NY2d 397, 404 [1995]; People v Chaney, 72 AD3d 1194,1195 [2010]).
Defendant's remaining arguments lack merit.
Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.