People v Wicks

2011 NY Slip Op 02976 [83 AD3d 1223]

April 14, 2011

Appellate Division, Third Department

As corrected through Wednesday, June 8, 2011

The People of the State of New York, Respondent, v Albert H.Wicks, Appellant.

—[*1]Salvatore C. Adamo, Albany, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.

Malone Jr., J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered February 4, 2010, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.

Defendant waived indictment and agreed to be prosecuted by a superior court information,charging him with driving while intoxicated. Defendant pleaded guilty as charged and waived hisright to appeal. Pursuant to the plea agreement, defendant agreed to successfully complete aone-year period of interim probation. During the period of interim probation, defendant wasrequired to complete a rehabilitation program and participate in the Warren County TreatmentCourt. If successful, it was understood that, at the conclusion of the one-year probation period,defendant would be sentenced to five years of probation. It was further understood that ifdefendant failed to successfully complete the required programs, he would be subject to a prisonsentence of 21/3 to 7 years. Defendant executed a written consent to theseconditions during the plea proceedings. After defendant was discharged from his rehabilitationprogram for noncompliance and theft of services, he was found in violation of the terms of theagreement and County Court imposed a sentence of 2 to 6 years in prison. Defendant nowappeals and we affirm.

Contrary to defendant's contention, we conclude that he voluntarily, knowingly and [*2]intelligently waived his right to appeal. The record reveals thatCounty Court distinguished the right to appeal from the rights that he was forfeiting by his guiltyplea. Defendant thereafter signed a written waiver in open court which acknowledged thatcounsel had explained its consequences to him and that he was waiving the right voluntarily.Accordingly, defendant validly waived his right to appeal (see People v Abrams, 75 AD3d 927, 927 [2010], lv denied15 NY3d 918 [2010]; People vThomas, 71 AD3d 1231, 1231-1232 [2010], lv denied 14 NY3d 893 [2010]).

Although defendant's contention that his plea was not voluntarily entered survives his appealwaiver, it is unpreserved for our review in light of defendant's failure to move to withdraw hisplea or vacate the judgment of conviction (see People v Davis, 74 AD3d 1490, 1490 [2010], lv denied15 NY3d 850 [2010]; People vSingh, 73 AD3d 1384, 1384-1385 [2010], lv denied 15 NY3d 809 [2010]).Moreover, defendant did not make any statements during the plea allocution that tended to negatean essential element of the crime or cast doubt upon his guilt, making the narrow exception to thepreservation rule inapplicable (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Bridge, 71 AD3d 1197,1198 [2010]).

Defendant also contends that counsel's failure to make a suppression motion deprived him ofthe effective assistance of counsel. To the extent that he claims that this failure affected thevoluntariness of his plea, such contention survives his waiver of the right to appeal, but isprecluded from our review by his failure to move to withdraw his plea or vacate the judgment ofconviction (see People v Belle, 74AD3d 1477, 1480 [2010], lv denied 15 NY3d 918 [2010]; People v DeBerardinis, 304 AD2d 914, 915 [2003], lv denied 100 NY2d 580 [2003]). In anyevent, such failure does not, on its own, establish ineffective assistance of counsel (see Peoplev De Berardinis, 304 AD2d at 915; People v Clifford, 295 AD2d 697, 698 [2002],lv denied 98 NY2d 709 [2002]). Finally, defendant's waiver of the right to appealprecludes his claim that his sentence was harsh and excessive (see People v Board, 75 AD3d 833,834 [2010]).

Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.