| People v Maracle |
| 2011 NY Slip Op 04962 [85 AD3d 1652] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AmberMaracle, Appellant. (Appeal No. 1.) |
—[*1]
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered September 25, 2009. The judgment convicted defendant, upon her plea of guilty, ofgrand larceny in the second degree and forgery in the second degree (four counts).
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence on theconviction of four counts of forgery in the second degree is unanimously dismissed and thejudgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her upon herplea of guilty of grand larceny in the second degree (Penal Law § 155.40 [1]) and fourcounts of forgery in the second degree (§ 170.10 [1]). In appeal No. 2, she appeals from aresentence with respect to the conviction of the four counts of forgery in the second degree inappeal No. 1. Contrary to defendant's contention in appeal No. 1, her waiver of the right to appealas part of the plea agreement was knowingly, voluntarily, and intelligently entered (see People v Lopez, 6 NY3d 248,256 [2006]). The record "establish[es] that the defendant understood that the right to appeal isseparate and distinct from those rights automatically forfeited upon a plea of guilty" (id.).Thus, defendant's valid waiver of the right to appeal encompasses her challenge to the severity ofthe sentence in appeal No. 1 and the resentence in appeal No. 2 (see id. at 255-256;People v Hidalgo, 91 NY2d 733, 737 [1998]). The further contention of defendant inappeal No. 1 that she was denied effective assistance of counsel does not survive her plea or hervalid waiver of the right to appeal because defendant "failed to demonstrate that 'the pleabargaining process was infected by [the] allegedly ineffective assistance or that defendant enteredthe plea because of [her] attorney['s] allegedly poor performance' " (People v Wright, 66 AD3d 1334[2009], lv denied 13 NY3d 912 [2009]; see People v Zulian, 68 AD3d 1731, 1732 [2009], lv denied14 NY3d 894 [2010]).
Although the contention of defendant in appeal No. 1 that her guilty plea was not knowing,voluntary and intelligent survives her valid waiver of the right to appeal (see Zulian, 68AD3d at [*2]1732), defendant failed to preserve that contentionfor our review by failing to move to withdraw her plea or to vacate the judgment of conviction(see People v Watts, 78 AD3d1593 [2010], lv denied 16 NY3d 838 [2011]). Contrary to defendant's contention,this case does not fall within the rare exception to the preservation requirement set forth inPeople v Lopez (71 NY2d 662, 666 [1988]), "because nothing in the plea colloquy castsany doubt on defendant's guilt or the voluntariness of the plea" (Watts, 78 AD3d 1593).In any event, we conclude that defendant's contention lacks merit. Although the amount ofrestitution that was included in the plea bargain was less than $50,000, that amount of restitutiondoes not negate the element of grand larceny in the second degree that the value of the propertystolen by defendant exceeded $50,000 (see Penal Law § 155.40 [1]). In pleadingguilty, defendant agreed to the recitation of the facts set forth by the prosecutor that she stoleproperty from her former employer that had a value in excess of $50,000. Present—Centra,J.P., Peradotto, Lindley and Sconiers, JJ.