| People v Smith |
| 2014 NY Slip Op 07825 [122 AD3d 1300] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRian T. Smith, Appellant. |
Patricia M. McGrath, Lockport, for defendant-appellant.
Rian T. Smith, defendant-appellant pro se.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Angelo J. Morinello, A.J.),rendered November 29, 2012. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a controlled substance in the fifth 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 criminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [5]). We reject defendant's contention that his waiver of the rightto appeal was invalid. Here, County Court's plea colloquy and defendant's execution of awritten waiver of the right to appeal demonstrate that defendant's " 'waiver of theright to appeal was a knowing and voluntary choice' " (People v Brown,296 AD2d 860, 860 [2002], lv denied 98 NY2d 767 [2002]; see People vKemp, 255 AD2d 397, 397 [1998]). In addition, we conclude that defendant was"adequately apprised . . . that the right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" (People v Buske, 87 AD3d1354, 1354 [2011], lv denied 18 NY3d 882 [2012] [internal quotation marksomitted]). We further conclude that defendant's valid waiver of the right to appealencompasses his challenge to the severity of the sentence (see People v Lococo,92 NY2d 825, 827 [1998];People v Raynor, 107 AD3d 1567, 1568 [2013], lv denied 22 NY3d1090 [2014]).
To the extent that defendant contends in his main brief that defense counsel wasineffective for failing to challenge the search warrant, we note that such contention "doesnot survive [his] plea or [his] valid waiver of the right to appeal because [he] failed todemonstrate that the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that [he] entered the plea because of [his] attorney['s] allegedly poorperformance" (People vGleen, 73 AD3d 1443, 1444 [2010], lv denied 15 NY3d 773 [2010][internal quotation marks omitted]; see People v Wright, 66 AD3d 1334, 1334 [2009], lvdenied 13 NY3d 912 [2009]). To the extent that defendant contends in his pro sesupplemental brief that the plea bargaining process was infected by defense counsel'sallegedly ineffective assistance, we further note that defendant's specific claims, i.e., thatdefense counsel failed to investigate and failed to make a suppression motion, are "notproperly before us because [they] involve[ ] matters outside the record on appeal andthus must be raised by way of a motion pursuant to CPL article 440" (People v Monaghan, 101AD3d 1686, 1686 [2012], lv denied 23 NY3d 965 [2014]; see People v Johnson, 81AD3d 1428, 1428 [2011], lv denied 16 NY3d 896 [2011]).
Finally, we reject defendant's contention that the court erred in denying his motion towithdraw his guilty plea without an evidentiary hearing. " 'The decision to permita defendant to withdraw a guilty plea rests in the sound discretion of the court' "(People v Falaro, 284 AD2d 972, 972 [2001]; see People v Burroughs,224 AD2d 1034, 1034 [1996], lv denied 88 NY2d 845 [1996]), and where, ashere, a defendant's motion to withdraw is "patently insufficient on its face," the court maysummarily deny the motion (People v Mitchell, 21 NY3d 964, 967 [2013]).Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.