| People v Ayala |
| 2014 NY Slip Op 03073 [117 AD3d 1447] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRicardo A. Ayala, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered June 8, 2012. The judgment convicted defendant, upon his plea of guilty, ofburglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the second degree (Penal Law § 140.25 [2]). Contraryto defendant's contention, he knowingly, voluntarily, and intelligently waived his right toappeal as a condition of the plea (see generally People v Lopez, 6 NY3d 248, 256 [2006]).County Court " 'engage[d] the defendant in an adequate colloquy to ensure thatthe waiver of the right to appeal was a knowing and voluntary choice' " (People v Ripley, 94 AD3d1554, 1554 [2012], lv denied 19 NY3d 976 [2012]; see People v Wright, 66 AD3d1334, 1334 [2009], lv denied 13 NY3d 912 [2009]). Further, the record as awhole establishes "that the defendant understood that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (Lopez, 6NY3d at 256; see Ripley, 94 AD3d at 1554). Defendant contends that the courterred in refusing to allow him to withdraw his plea on the ground that defense counselhad led him to believe that the plea did not preclude him from filing an appeal. Althoughthat contention survives defendant's waiver of the right to appeal (see People v Theall, 109 AD3d1107, 1107-1108 [2013]), it is unpreserved for our review because the recordestablishes that defendant did not in fact move to withdraw his plea on that ground (see People v Hall, 82 AD3d1619, 1619 [2011], lv denied 16 NY3d 895 [2011]; People v Carlisle, 50 AD3d1451, 1451 [2008], lv denied 10 NY3d 957 [2008]). This case does not fallwithin the rare exception to the preservation requirement because nothing in the pleaallocution calls into question the voluntariness of the plea or casts "significant doubt"upon defendant's guilt (People v Lopez, 71 NY2d 662, 666 [1988]). We concludethat the court did not otherwise abuse its discretion in denying defendant's motion towithdraw his plea, inasmuch as there is no "evidence of innocence, fraud, or mistake ininducing the plea" (People vWatkins, 107 AD3d 1416, 1416 [2013], lv denied 22 NY3d 959 [2013];see People v Zimmerman,100 AD3d 1360, 1361 [2012], lv denied 20 NY3d 1015 [2013]; People vRobertson, 255 AD2d 968, 968 [1998], lv denied 92 NY2d 1053[1999]).
[*2] Defendant's contention that hewas denied effective assistance of counsel " 'does not survive his guilty plea orhis waiver of the right to appeal because there was no showing that the plea bargainingprocess was infected by [the] allegedly ineffective assistance or that defendant enteredthe plea because of his attorney['s] allegedly poor performance' " (People v Russell, 55 AD3d1314, 1314 [2008], lv denied 11 NY3d 930 [2009]; see People v Lugg, 108 AD3d1074, 1075 [2013]; Peoplev Lucieer, 107 AD3d 1611, 1612 [2013]).
Defendant's waiver of his right to appeal does not encompass his challenge to theseverity of his sentence because " 'no mention was made on the record during thecourse of the allocution concerning the waiver of defendant's right to appeal' with respectto his conviction that he was also waiving his right to appeal any issue concerning theseverity of the sentence" (Peoplev Peterson, 111 AD3d 1412, 1412 [2013]; see People v Maracle, 19 NY3d 925, 928 [2012]; People v Pimentel, 108 AD3d861, 862 [2013], lv denied 21 NY3d 1076 [2013]). We neverthelessconclude that defendant's sentence is not unduly harsh or severe.Present—Scudder, P.J., Peradotto, Carni, Lindley and Valentino, JJ.