| People v Jackson |
| 2012 NY Slip Op 06705 [99 AD3d 1240] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidJackson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered June 3, 2010. The judgment convicted defendant, upon his plea of guilty, of rape in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of rape inthe first degree (Penal Law § 130.35 [1]), defendant contends that his plea was notknowing, intelligent, and voluntary. Defendant failed to move to withdraw his plea or to vacatethe judgment of conviction on that ground and thus has failed to preserve his contention for ourreview (see People v Francis, 53AD3d 1112, 1113 [2008], lv denied 11 NY3d 736 [2008]). This case does not fallwithin the narrow exception to the preservation requirement set forth in People v Lopez(71 NY2d 662, 666 [1988]). In any event, defendant's contention lacks merit (see People v Moorer, 63 AD3d1590, 1591 [2009], lv denied 13 NY3d 837 [2009]; People v Jones, 42 AD3d 968, 968[2007]). Defendant's further contention that he was denied effective assistance of counsel doesnot survive his plea of guilty inasmuch as "[t]here is no showing that the plea bargaining processwas infected by any allegedly ineffective assistance or that defendant entered the plea because ofhis attorney['s] allegedly poor performance" (People v Burke, 256 AD2d 1244, 1244[1998], lv denied 93 NY2d 851 [1999]; see People v Barnes, 32 AD3d 1250, 1251 [2006]).
We agree with defendant that his waiver of the right to appeal is invalid and thus does notencompass his challenge to the severity of the period of postrelease supervision. "[I]t is not clearthat 'the trial court engaged in a full and adequate colloquy, and [that] defendant expresslywaived [his] right to appeal without limitation' " (People v Maracle, 19 NY3d 925, 928 [2012]; see generallyPeople v Hidalgo, 91 NY2d 733, 737 [1998]), and defendant's waiver of the right to appealalso is invalid "inasmuch as the record fails to establish that 'defendant understood that the rightto appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty' "(People v Balkum, 71 AD3d1594, 1595 [2010], lv denied 14 NY3d 885 [2010]; see People v Daniels, 68 AD3d1711, 1712 [2009], lv denied 14 NY3d 887 [2010]; People v Williams, 59 AD3d 339,340 [2009], lv denied 12 NY3d 861 [2009]). Nevertheless, we reject defendant'schallenge to the severity of the period of postrelease supervision. Present—Fahey, J.P.,Peradotto, Carni and Sconiers, JJ.