| People v Durodoye |
| 2014 NY Slip Op 00050 [113 AD3d 1130] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Rachael Durodoye, Appellant. |
—[*1] Rachael Durodoye, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered September 8, 2010. The judgment convicted defendant, upon her plea of guilty,of robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea ofguilty of robbery in the second degree (Penal Law § 160.10 [1]). Contrary todefendant's contention, the record establishes that she knowingly, voluntarily, andintelligently waived her right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]). We rejectdefendant's contention that County Court should have explained that certain issuessurvive a waiver of the right to appeal, inasmuch as " '[n]o particular litany is required foran effective waiver of the right to appeal' " (People v Fisher, 94 AD3d 1435, 1435 [2012], lvdenied 19 NY3d 973 [2012]; see People v Moissett, 76 NY2d 909, 910-911[1990]). We reject defendant's further contention that the court was required to discussthe waiver at sentencing (see generally Moissett, 76 NY2d at 912; People v Pieper, 104 AD3d1225, 1225 [2013]). Defendant's contention that the guilty plea was not knowingly,voluntarily, and intelligently entered survives the waiver of the right to appeal but is notpreserved for our review because she failed to move to withdraw the plea or to set asidethe judgment of conviction (seePeople v Busch, 60 AD3d 1393, 1394 [2009], lv denied 12 NY3d 913[2009]). This case does not fall within the narrow exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 666 [1988]). The valid waiverof the right to appeal encompasses defendant's challenge to the severity of the sentence(see People v Hidalgo, 91 NY2d 733, 737 [1998]).
Defendant contends in her pro se supplemental brief that she was denied effectiveassistance of counsel because defense counsel was subsequently convicted of a chargethat adversely reflected on his honesty, trustworthiness, or fitness as an attorney.Defendant's contention does not survive the guilty plea or the waiver of the right toappeal inasmuch as " 'defendant failed to demonstrate that the plea bargaining processwas infected by [the] allegedly [*2]ineffective assistanceor that defendant entered the plea because of [defense counsel's] allegedly poorperformance' " (Fisher, 94 AD3d at 1435-1436). Indeed, we note that defendantdoes not point to anything in defense counsel's performance to show that she allegedlyreceived less than meaningful representation. Present—Centra, J.P., Peradotto,Carni, Lindley and Valentino, JJ.