| People v Milton |
| 2013 NY Slip Op 07507 [111 AD3d 765] |
| November 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jacob Milton, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Jessica L. Zellner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Mullings, J.), rendered October 28, 2010, convicting him of grand larceny in the firstdegree, upon his plea of guilty, and imposing sentence. By decision and order datedFebruary 21, 2012, this Court reversed the judgment, on the law, vacated the plea,dismissed the superior court information, and remitted the matter to the Supreme Court,Queens County, for further proceedings on the felony complaint (see People v Milton, 92 AD3d899 [2012]). On May 7, 2013, the Court of Appeals reversed the decision and orderof this Court, reinstated the superior court information, and remitted the matter to thisCourt for consideration of the facts and issues raised but not determined on the appeal tothis Court (see People vMilton, 21 NY3d 133 [2013]).
Ordered that, upon remittitur from the Court of Appeals, the judgment is affirmed.
The defendant pleaded guilty to a superior court information charging him with, interalia, grand larceny in the first degree for his role in a wide ranging mortgage fraud andidentity theft scheme. Nine months later, the defendant moved to withdraw his plea onthe basis that, inter alia, he was innocent of the charges, had not been fully informed ofthe consequences of pleading guilty, and had been coerced by his attorney to plead guiltywith the threat of jail. The Supreme Court denied the motion, finding, inter alia, that thedefendant's plea was knowing, voluntary, and intelligent.
The defendant appealed from the judgment, contending, inter alia, that the superiorcourt information he pleaded guilty to was jurisdictionally defective. In a decision andorder dated February 21, 2012, this Court agreed with the defendant and held that thesuperior court information was jurisdictionally defective, reversed the judgment, vacatedthe plea, dismissed the superior court information, and remitted the matter to theSupreme Court, Queens County, for further proceedings on the felony complaint (see People v Milton, 92 AD3d899, 900 [2012]). Upon reaching this conclusion, this Court declined to reach thedefendant's remaining arguments since they had been rendered academic.
In an opinion and order dated May 7, 2013 (see People v Milton, 21 NY3d 133 [2013]), the Court ofAppeals reversed this Court's decision and order. The Court of Appeals concluded thatthe superior court information was jurisdictionally sound, reinstated it, and remitted thematter to this Court for consideration of the facts and issues raised but not determined onthe defendant's appeal [*2]to this Court.
"[B]efore a waiver of the right to appeal may be enforced, the record must beexamined to ensure that the waiver was voluntary, knowing and intelligent" (People vCallahan, 80 NY2d 273, 283 [1992]; see People v Ramos, 7 NY3d 737 [2006]). Here, the recordreflects that the Supreme Court confirmed that the defendant discussed the writtenwaiver with his counsel, that he was aware of its contents before he signed it, and that heorally acknowledged to the court that he understood the written waiver (see People vCallahan, 80 NY2d at 283; People v McCray, 103 AD3d 666 [2013]). Thus, contraryto the defendant's contention, his waiver of the right to appeal was knowing, voluntary,and intelligent (see People vLopez, 6 NY3d 248, 256 [2006]; People v Seaberg, 74 NY2d 1, 11[1989]).
The defendant's valid waiver of his right to appeal precludes review of his challengeto the factual sufficiency of his plea allocution (see People v Brown, 78 AD3d 723 [2010]; People v Johnson, 73 AD3d951 [2010]). While the valid waiver of his right to appeal would typically precludereview of the defendant's claim that he was deprived of his right to effective assistance ofcounsel, here, the defendant claims that the alleged ineffective assistance may haveaffected the voluntariness of his plea, and, as such, his claim is reviewable (see People v Ramos, 77 AD3d773, 774 [2010]; People vDrago, 50 AD3d 920 [2008]; People v Demosthene, 2 AD3d 874 [2003]). Nevertheless,contrary to the defendant's contention, his attorney provided him with meaningfulrepresentation (see People vCaban, 5 NY3d 143, 152 [2005]; People v Baldi, 54 NY2d 137, 147[1981]). Moreover, the Supreme Court providently exercised its discretion in denying thedefendant's motion to withdraw his guilty plea (see generally People v Seeber, 4 NY3d 780 [2005]; People v Bivens, 88 AD3d808 [2011]; People vBruno, 73 AD3d 941 [2010]; People v Pooler, 58 AD3d 757 [2009]; People v Mann, 32 AD3d865, 866 [2006]; People vKucharczyk, 15 AD3d 595 [2005]).
The defendant's remaining contentions are without merit. Eng, P.J., Rivera, Hall andSgroi, JJ., concur.