People v Williams

2012 NY Slip Op 00567 [91 AD3d 1299]

Jnury 31, 2012

Appellate Division, Fourth Department

As corrected through Wednesday, February 29, 2012

The People of the State of New York,Respondent, v Adrienne Williams, Appellant.

David J. Pajak, Alden, for defendant-appellant.Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent. Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered May 27, 2009. The judgment convicted defendant, upon her plea of guilty, of grandlarceny in the fourth degree (two counts). It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her upon a plea of guiltyof two counts of grand larceny in the fourth degree (Penal Law 155.30 [1]). Defendant'schallenge to the factual sufficiency of the plea allocution is encompassed by her waiver of theright to appeal (see People v Jorge N.T., 70 AD3d 1456, 1457 [2010], lv denied 14 NY3d 889[2010]), the validity of which she does not contest on appeal. In any event, defendant's challengeis also unpreserved for our review inasmuch as she did not move to withdraw her plea or tovacate the judgment of conviction on that ground (see People v Lopez, 71 NY2d 662, 665[1988]; People v Moorer, 63 AD3d 1590 [2009], lv denied 13 NY3d 837 [2009]). Although thewaiver by defendant of the right to appeal does not encompass her contention that the plea wasnot knowingly, intelligently or voluntarily entered, she failed to preserve that contention for ourreview by failing to move to withdraw the plea or to vacate the judgment of conviction on thatground (see People v Montanez, 89 AD3d 1409 [2011]; People v Thomas, 77 AD3d 1325, 1326[2010], lv denied 16 NY3d 800 [2011]). This case does not fall within the rare exception to thepreservation requirement because the plea colloquy did not "clearly cast[ ] significant doubt uponthe defendant's guilt or otherwise call[ ] into question the voluntariness of the plea" (Lopez, 71NY2d at 666). To the extent that defendant's contention that she was denied effective assistanceof counsel survives her guilty plea and waiver of the right to appeal (see People v Bryant, 87AD3d 1270, 1271-1272 [2011]), we conclude that it is without merit (see generally People vFord, 86 NY2d 397, 404 [1995]; People v Jermain, 56 AD3d 1165 [2008], lv denied 11 NY3d926 [2009]). Finally, County Court did not err in failing sua sponte to order a competencyhearing (see Bryant, 87 AD3d at 1271-1272; Jermain, 56 AD3d at 1165). We note, however, thatthe certificate of conviction incorrectly recites that defendant was convicted of one count ofgrand larceny in the fourth degree when she in fact was convicted of two such counts. Thecertificate of conviction must therefore be amended accordingly (see People v Saxton, 32 AD3d1286 [2006]). Present Smith, J.P., Peradotto, Lindley, Sconiers and Gorski, JJ.