| People v Smith |
| 2013 NY Slip Op 00363 [102 AD3d 896] |
| January 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lawrence M. Smith, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hinrichs, J.), rendered August 17, 2011, convicting him of criminal contempt in the firstdegree (two counts), assault in the second degree, assault in the third degree, criminalmischief in the fourth degree, unauthorized use of a motor vehicle, harassment in thesecond degree, and endangering the welfare of a child, upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
At issue here is whether defense counsel was ineffective because he negotiated anunfavorable plea agreement. Pursuant to the agreement, the defendant pleaded guilty toall counts in the indictment, waived his right to appeal, and was promised a sentence ofsix months of imprisonment plus five years of probation, contingent upon the defendantnot being "re-arrested between now and the date set for sentencing." The People did notagree with the promised sentence. The People recommended a sentence of a determinateterm of imprisonment of two years plus a three-year period of postrelease supervision.
Before the defendant could be sentenced, he was re-arrested for a new crime, drivingwhile intoxicated, and pleaded guilty to driving while intoxicated as a misdemeanor. Forthe instant offenses, the defendant was sentenced, in accordance with the People'soriginal recommendation, inter alia, to a two-year prison term and a three-year period ofpostrelease supervision.
A valid waiver of the right to appeal precludes appellate review of a defendant'scontention that he was deprived of effective assistance of counsel, "except to the extentthat the alleged ineffective assistance affected the voluntariness of his plea" (People v Watt, 82 AD3d912, 912 [2011]). The fact that a plea agreement was unfavorable does not mean thatthe plea was involuntary (seePeople v Burwell, 56 AD3d 304, 305 [2008]).
Here, the defendant did in fact receive a favorable sentencing promise from thecourt. The fact that the defendant ultimately received a sentence that included a two-yearprison term was the result of his own conduct. Under these circumstances, the defendantwas not deprived of the [*2]effective assistance ofcounsel with respect to his plea of guilty.
The defendant's valid waiver of his right to appeal precludes review of his contentionthat his enhanced sentence was excessive (see People v Arrington, 94 AD3d 903 [2012]). Angiolillo,J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.