| People v Brown |
| 2014 NY Slip Op 02106 [115 AD3d 1115] |
| March 27, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaBrown, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered July 29, 2010, convicting defendant upon his plea of guilty of thecrime of attempted assault in the first degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to attemptedassault in the first degree and waived his right to appeal. Prior to sentencing, defendantwas assigned new counsel and moved to withdraw his plea, arguing that it was notvoluntarily, knowingly or intelligently entered. County Court denied the motion andthereafter sentenced defendant in accordance with the plea agreement to a prison term offive years, to be followed by five years of postrelease supervision. Defendant appeals.
Initially, we reject defendant's contention that he did not knowingly waive the rightto appeal. County Court separately and fully advised defendant as to the appeal rights hewas waiving and explained the waiver's ramifications, and defendant executed acounseled written waiver, which acknowledged that he was voluntarily, knowingly andintelligently waiving the right to appeal his conviction and sentence (see People v Torres, 110AD3d 1119, 1119 [2013], lv denied 22 NY3d 1044 [2013]; People v Foote, 102 AD3d1056, 1057 [2013], lv denied 20 NY3d 1098 [2013]). Defendant's validwaiver precludes his claim that his sentence is harsh and excessive (see People v Audette, 108AD3d 943, 944 [2013]; People v Fallen, 106 AD3d 1118, 1119 [2013]).[*2]
Defendant next claims that his plea was notvoluntarily entered, because he lacked an understanding of the plea, the plea was aproduct of duress and he received ineffective assistance of counsel. Although his claim isnot precluded from judicial review (see People v Carbone, 101 AD3d 1232, 1233-1234[2012]; People v Shurock,83 AD3d 1342, 1343-1344 [2011]), it is unpersuasive. Contrary to defendant'scontention, a review of the plea colloquy reveals that County Court informed defendantthat his sentence would include five years of postrelease supervision and defendantaffirmed his understanding. Moreover, County Court fully explained the ramifications ofthe plea and the rights that defendant was relinquishing by pleading guilty, including thewaiver of potential justification and intoxication defenses. Defendant's claim of beingunder duress at the time of his plea is belied by the record, as County Court provideddefendant with additional time to discuss the plea with family members and counsel and,in an extensive colloquoy, ensured that defendant was entering the plea voluntarily.Regarding defendant's claim of ineffective assistance of counsel, the record reflects thatcounsel made appropriate pretrial motions and negotiated an advantageous plea. In short,there is "nothing in the record at the time of the plea [that] calls into question thevoluntariness of [the] plea or indicates that it was rendered so due to counsel'srepresentation" (People vHerringshaw, 83 AD3d 1133, 1134 [2011]). Defendant's remaining claims ofineffective assistance of counsel, including that counsel had a conflict of interest, failedto adequately explain the terms of the plea agreement or discuss with him the viability ofcertain defenses, all involve matters outside of the record and are more properly thesubject of a CPL article 440 motion (see People v Wilson, 92 AD3d 981, 981-982 [2012], lvdenied 19 NY3d 1029 [2012]; People v Hanna, 303 AD2d 838, 839 [2003]).
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.