| People v Knoxsah |
| 2012 NY Slip Op 03304 [94 AD3d 1505] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Alexa R.Knoxsah, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedJanuary 24, 2011. The judgment convicted defendant, upon her plea of guilty, of burglary in thethird degree, criminal mischief in the third degree, overdriving, torturing or injuring an animal,petit larceny and assault in the third degree.
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 guilty of,inter alia, burglary in the third degree (Penal Law § 140.20). We reject defendant'scontention that her waiver of the right to appeal was invalid (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Althoughdefendant's further contention that her plea was not knowingly, voluntarily and intelligentlyentered survives her valid waiver of the right to appeal, defendant failed to preserve thatcontention for our review (see People vDavis, 45 AD3d 1357, 1357-1358 [2007], lv denied 9 NY3d 1005 [2007]). Thiscase does not fall within the rare exception to the preservation requirement set forth in Peoplev Lopez (71 NY2d 662, 666 [1988]), "inasmuch as nothing in the plea colloquy castssignificant doubt on defendant's guilt or the voluntariness of the plea" (People v Lewandowski, 82 AD3d1602, 1602 [2011]). In any event, the record establishes that the plea was knowingly,voluntarily, and intelligently entered (see generally People v Shubert, 83 AD3d 1577, 1578 [2011]).
Although defendant was not required to preserve for our review the contention that she wasdenied the right to counsel (see People v Kinchen, 60 NY2d 772, 773 [1983]; People v Harvey, 70 AD3d 1454,1455 [2010], lv denied 15 NY3d 750 [2010]), we nevertheless conclude that it is withoutmerit. The postplea return on warrant appearance was not a "critical stage of the proceeding"(People v Chapman, 69 NY2d 497, 500 [1987]), and thus the absence of defense counseldid not constitute a deprivation of defendant's rights (see generally People v Garcia, 247AD2d 549 [1998], affd 92 NY2d 726 [1999], cert denied 528 US 845 [1999]; People v Bogan, 78 AD3d 855,855 [2010], lv denied 16 NY3d 742 [2011]; People v Blas, 192 AD2d 540, 540[1993], lv denied 82 NY2d 751 [1993]).
Defendant further contends that County Court improperly issued a bench warrant based uponher failure to appear for a probation interview and improperly held her without bail pending[*2]sentencing upon her rearrest. Even assuming, arguendo, thatdefendant's contentions survive her valid waiver of the right to appeal, defendant failed topreserve those contentions for our review inasmuch as she did not raise them before CountyCourt (see generally CPL 470.05 [2]), or by way of a motion to withdraw the plea or tovacate the judgment of conviction, and we decline to reach those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant's contention that she was denied effective assistance of counsel does not surviveher plea or her valid waiver of the right to appeal because defendant "failed to demonstrate that'the plea bargaining process was infected by [the] allegedly ineffective assistance or thatdefendant entered the 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 Rizek [appeal No. 1], 64AD3d 1180 [2009], lv denied 13 NY3d 862 [2009]). In any event, we neverthelessconclude that she received meaningful representation (see generally People v Ford, 86NY2d 397, 404 [1995]), inasmuch as "nothing in the record casts doubt upon the apparenteffectiveness of counsel" (People vNieves, 89 AD3d 1285, 1286 [2011] [internal quotation marks omitted]). Indeed,defense counsel successfully argued for the promised sentence despite defendant's rearrest inviolation of the plea agreement. Present—Scudder, P.J., Smith, Centra, Fahey andPeradotto, JJ.