| People v Arney |
| 2014 NY Slip Op 05734 [120 AD3d 949] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vScott Arney, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered January 7, 2013. The judgment convicted defendant, upon his plea of guilty, ofassault 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 a plea ofguilty of assault in the second degree (Penal Law § 120.05 [1]). We rejectdefendant's contention that his waiver of the right to appeal was invalid. "County Court'splea colloquy, together with the written waiver of the right to appeal, adequately appriseddefendant that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (People v Buske, 87 AD3d 1354, 1354 [2011], lv denied18 NY3d 882 [2012] [internal quotation marks omitted]). Defendant's furthercontention that "the court erred in failing sua sponte to inquire into his state ofintoxication at the time of the commission of the crime is actually a challenge to thefactual sufficiency of the plea allocution, and it is well settled that defendant's validwaiver of the right to appeal encompasses that challenge" (People v Zimmerman, 100AD3d 1360, 1361 [2012], lv denied 20 NY3d 1015 [2013]). In any event,"[t]he issue of intoxication was raised by [defendant] for the first time in the presentenceinterview, and thus the court had no duty to make further inquiry at the time of the pleabased on information in the presentence report" (People v Jordan, 292 AD2d 860,861 [2002], lv denied 98 NY2d 698 [2002]; see People v Espinal, 99 AD3d 435, 435 [2012], lvdenied 20 NY3d 986 [2012]). Because nothing in defendant's plea allocution castdoubt on the voluntariness of his plea and inasmuch as defendant made no motion towithdraw his plea, defendant's contention is unpreserved for our review (see People vLopez, 71 NY2d 662, 665 [1988]).
Although defendant's further contention that he is innocent survives his valid waiverof the right to appeal (seePeople v Lewandowski, 82 AD3d 1602, 1602 [2011]; see also People v Franco, 104AD3d 790, 790 [2013]; People v Wright, 66 AD3d 1334, 1334 [2009], lvdenied 13 NY3d 912 [2009]), that contention is also unpreserved for our review(see Lewandowski, 82 AD3d at 1602). In any event, defendant's assertion ofinnocence is conclusory and belied by his statements during the plea colloquy (seeid.; Wright, 66 AD3d at 1334).
We further conclude that the contention of defendant that he was denied effectiveassistance of counsel "does not survive the plea or his valid waiver of the right to appealbecause defendant 'failed to demonstrate that the plea bargaining process was infected by[the] allegedly ineffective assistance or that defendant entered the plea because of [his]attorney['s] allegedly poor performance' " (Lewandowski, 82 AD3d at1602-1603). " 'In the context of a guilty plea, a defendant has been affordedmeaningful representation when he or she receives an advantageous plea and nothing inthe record casts doubt on the apparent effectiveness of counsel' " (People v Liggins, 82 AD3d1625, 1625 [2011], lv denied 17 NY3d 797 [2011], quoting People vFord, 86 NY2d 397, 404 [1995]). Here, defendant failed to assert his innocence orraise a possible intoxication defense at sentencing when given the opportunity to addressthe court and, given the favorable plea [*2]negotiated bydefense counsel, which significantly reduced his sentencing exposure, we conclude thatdefendant was afforded meaningful representation (see People v Neil, 112 AD3d 1335, 1336 [2013]).
Finally, we agree with defendant that "the waiver of the right to appeal does notencompass his challenge to the severity of the sentence because 'no mention was made onthe record during the course of the allocution concerning the waiver of defendant's rightto appeal' with respect to his conviction that he was also waiving his right to appeal anyissue concerning the severity of the sentence" (People v Peterson, 111 AD3d 1412, 1412 [2013]; see People v Maracle, 19NY3d 925, 927-928 [2012]; People v Milon, 114 AD3d 1130, 1131 [2014]). Nor is thedeficiency in the allocution cured by defendant's written waiver of the right to appeal (see People v Ramos-Roman,112 AD3d 1364, 1364 [2013]; People v Pimentel, 108 AD3d 861, 862 [2013], lvdenied 21 NY3d 1076 [2013]; see generally Maracle, 19 NY3d at 927-928).We nevertheless conclude that the sentence is not unduly harsh or severe.Present—Scudder, P.J., Smith, Carni, Lindley and Whalen, JJ.