| People v Nugent |
| 2013 NY Slip Op 05703 [109 AD3d 625] |
| August 21, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jacob C. Nugent, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County(Kelly, J.), rendered June 1, 2011, convicting him of attempted burglary in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v Bradshaw, 18NY3d 257 [2011]; People vBatista, 100 AD3d 650 [2012]). The Supreme Court's terse colloquy at the pleaallocution failed to sufficiently advise the defendant of the nature of his right to appeal.Although the defendant signed a written waiver of his right to appeal, he never orallyconfirmed that he grasped the concept of the appeal waiver and the nature of the right hewas foregoing (see People v Bradshaw, 18 NY3d at 267; cf. People v Ramos, 7 NY3d737 [2006]). Under these circumstances, the record does not establish that thedefendant knowingly, voluntarily, and intelligently waived his right to appeal.
By pleading guilty, the defendant forfeited his claim that his statutory right to aspeedy trial was violated (seePeople v Franco, 104 AD3d 790 [2013]).
The defendant's contention that his plea was not voluntary is unpreserved forappellate review because he did not move to vacate his plea or otherwise raise this issuebefore the Supreme Court (seePeople v Pryor, 11 AD3d 565 [2004]). In any event, the defendant's plea ofguilty was entered knowingly, voluntarily, and intelligently (see People vFiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662, 666[1988]; People v Harris, 61 NY2d 9, 17 [1983]).
The issue of ineffective assistance of counsel regarding the plea bargaining processgenerally survives a plea of guilty (see e.g. People v Gedin, 46 AD3d 701 [2007]). Here,however, the defendant's contention that he did not receive the effective assistance ofcounsel is not reviewable because it pertains to matters outside the record (see People v Miller, 68 AD3d1135 [2009]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.