| People v Williams |
| 2011 NY Slip Op 04714 [84 AD3d 1417] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoshWilliams, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Sandra Courbois of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.),rendered July 6, 2009, convicting him of attempted burglary in the second degree, upon his pleaof guilty, and imposing sentence.
Ordered that the judgment is affirmed.
At the plea proceeding, the County Court outlined the terms of the plea arrangement, andpromised that it would issue what it termed a "violent felony override" to make the defendanteligible for various programs of the Department of Correctional Services (see People vCumberbatch, 24 Misc 3d 412 [2009]; cf. 7 NYCRR 1900.4 [c] [1] [iii]). Thedefendant agreed to those terms and, in response to the County Court's question, stated that hewas pleading guilty to attempted burglary in the second degree under the first count of theindictment. The defendant allocuted to the voluntariness of the plea. The County Court thereafterasked the defendant if anyone had made any promises other than what the County Court hadalready outlined. The defendant responded, "I would just ask for the recommendation of Shock[incarceration] program." The County Court said, "I think I can get you in Shock with the violentfelony override . . . I mean, it's up to the Shock program. But, if I override theviolent felony, it doesn't appear that there's any reason why they won't accept you." Thedefendant then admitted facts constituting the crime to which he was pleading guilty, and hewaived his right to appeal. In fact, the defendant was not eligible for the shock incarcerationprogram (Correction Law art 26-A), and the "violent felony override" could not affect that status(see Correction Law § 865 [1]).
The defendant contends that his plea of guilty was not knowing, voluntary, and intelligentbecause the County Court impliedly promised that he would be admitted to the shockincarceration program (see Correction Law art 26-A). Although the claim survives thedefendant's otherwise valid waiver of his right to appeal (see People v Morrow, 48 AD3d704, 705 [2008]; People v Stewart, 30 AD3d 624 [2006]), it is without merit.Examination of the plea transcript makes clear that neither the defendant's eligibility for theshock incarceration program (see Correction Law § 865 [1]), nor his ultimateadmission to that program was a condition of the plea (see People v Martinez, 56 AD3d800 [2008]; People v Taylor, 284 AD2d [*2]573, 574[2001]; cf. People v Vanguilder, 32 AD3d 1110, 1110-1111 [2006]; People vChristian, 158 AD2d 705, 705-706 [1990]).
By waiving his right to appeal, the defendant gave up his right to challenge the adequacy ofhis attorney's representation, except insofar as counsel's alleged ineffectiveness affected thevoluntariness of the defendant's guilty plea (see People v Ramos, 77 AD3d 773, 774[2010]). In reviewing that limited claim, we find that counsel was not ineffective (see Peoplev Wolmart, 5 AD3d 706, 707 [2004]). Finally, in light of the defendant's waiver of the rightto appeal, we do not review his claim that the sentence was excessive (see People vKirkorov, 68 AD3d 1014 [2009]), particularly in light of the fact that he received thesentence that he was promised. Dillon, J.P., Covello, Balkin, Lott and Roman, JJ., concur.