| People v Stevenson |
| 2014 NY Slip Op 05375 [119 AD3d 1156] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vHarold C. Stevenson, Appellant. |
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered June 8, 2012, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to criminal possession of a controlled substance in the thirddegree in satisfaction of a five-count indictment, pursuant to a plea agreement thatincluded an appeal waiver. After denying defendant's motion to withdraw his plea,County Court imposed the agreed-upon term of two years in prison with two years ofpostrelease supervision. Defendant appeals.
Initially, defendant did not effectively waive his right to appeal because neither theoral colloquy nor the written appeal waiver advised defendant that the appeal waiver "isseparate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]; see Peoplev Bradshaw, 18 NY3d 257, 264 [2011]; People v Bressard, 112 AD3d 988, 988 [2013], lvdenied 22 NY3d 1137 [2014]; People v Ladieu, 105 AD3d 1265, 1265 [2013], lvdenied 21 NY3d 1017 [2013]). While defendant's claim that his guilty plea was notknowing, voluntary and intelligent was preserved for appellate review by his motion tovacate the plea, this claim lacks merit (see People v Fiumefreddo, 82 NY2d 536,543 [1993]). County Court advised him of the terms of the plea agreement, thetrial-related rights that he was forgoing [*2]and theconsequences of his plea, and he was afforded an opportunity to consult with counsel andindicated that he understood the plea terms and agreed to them. Defendant then admittedto each of the allegations in count 1 of the indictment. He was not required to recite theelements of the crime or the underlying facts, as his unequivocal affirmative responses tothe court's questions were adequate to establish his guilt (see People v Smith, 112 AD3d1232, 1233 [2013], lv denied 22 NY3d 1203 [2014]).
We reject defendant's contention that he was deprived of the effective assistance ofcounsel because counsel "allowed" him to plead guilty while his statutory speedy trialmotion was pending (see Peoplev Caban, 5 NY3d 143, 152 [2005]). Counsel made and pursued a motion todismiss on statutory speedy trial grounds (compare People v Garcia, 33 AD3d 1050, 1051-1052[2006], lv denied 9 NY3d 844 [2007]), and presumably weighed the likelihood ofsuccess on that motion when advising defendant to accept a plea to only one of fivecounts, with a promise of the minimum sentence on that count. It was ultimatelydefendant's decision whether to accept the plea agreement while that motion remainedundecided. To the extent that defendant raises arguments concerning what counseladvised him with regard to whether to enter a guilty plea and what documents defendantmay or may not have had when he entered his plea, those arguments address mattersoutside the record on appeal, which are more properly raised in a motion to vacate thejudgment pursuant to CPL article 440 (see People v Haffiz, 19 NY3d 883, 885 [2012]; People v Morey, 110 AD3d1378, 1379-1380 [2013], lv denied 23 NY3d 965 [2014]). By pleadingguilty, aware of the fact that his CPL 30.30 motion was pending, defendant forfeited thatdefense (see People v O'Brien, 56 NY2d 1009, 1010 [1982]; People vFriscia, 51 NY2d 845, 847 [1980]; People v Irvis, 90 AD3d 1302, 1303 [2011], lvdenied 19 NY3d 962 [2012]; People v Burke, 90 AD3d 1246, 1247 [2011], lvdenied 18 NY3d 956 [2012]). Defendant's remaining contentions are similarlyunpersuasive.
Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.