| People v Van Clief |
| 2014 NY Slip Op 08059 [122 AD3d 1062] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1](November 20, 2014)
| The People of the State of New York, Respondent, vRaymond Van Clief, Appellant. |
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Stein, J. Appeals (1) from a judgment of the County Court of Schenectady County(Giardino, J.), rendered November 29, 2010, convicting defendant upon his plea of guiltyof the crime of manslaughter in the first degree, and (2) by permission, from an order ofsaid court (Drago, J.), entered December 12, 2012, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged in an indictment with various crimes, including murder in thesecond degree, after he shot and killed his ex-wife's paramour. Following the denial ofhis motion to suppress statements made to police and the granting of the People's motionto preclude psychiatric evidence, defendant pleaded guilty to manslaughter in the firstdegree and waived his right to appeal. Defendant was thereafter sentenced, in accordancewith the plea agreement, to 23 years in prison to be followed by five years of postreleasesupervision. Defendant's subsequent motion pursuant to CPL 440.10 to vacate thejudgment of conviction was denied, and defendant now appeals from both the judgmentof conviction and, by permission, the order denying his motion to vacate thejudgment.
Initially, we reject defendant's contention that his waiver of the right to appeal isinvalid. County Court (Giardino, J.) adequately explained the nature of the right toappeal and elicited an explanation of the right from defendant in his own words to ensurehis understanding. In addition, defendant signed a detailed written waiver in open courtthat further explained the nature of the right and clarified that it was separate and distinctfrom the rights automatically forfeited upon a plea of guilty. In our view, defendantknowingly, intelligently and voluntarily waived his right to appeal his conviction andsentence (see People vBradshaw, 18 NY3d 257, 264-267 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]), therebyprecluding his claim that his sentence is harsh and excessive (see People v Fisher, 119 AD3d1289, 1289 [2014]).
While defendant's challenge to the voluntariness of the plea survives his valid appealwaiver (see People v Seaberg, 74 NY2d 1, 10 [1989]), his contentions that hewas not adequately informed of the terms of the plea and did not have sufficient time toconsider them are unpreserved inasmuch as he failed to move to withdraw his plea (see People v Morales, 119AD3d 1082, 1084 n [2014]), and the narrow exception to the preservation rule isinapplicable inasmuch as defendant made no statements during the allocution that wouldcast doubt on the voluntariness of the plea (see People v Jackson, 119 AD3d 1288, 1288 [2014]; People v Watson, 115 AD3d1016, 1017 [2014], lv denied 24 NY3d 965 [2014]). In any event, hischallenge to the voluntariness of his plea, including his related claim of ineffectiveassistance of counsel, is belied by the record.
Turning to the denial of the CPL 440.10 motion to vacate the judgment ofconviction, defendant asserted, among other things, that his counsel was ineffective byfailing to timely disclose his history of posttraumatic stress disorder. However, we notethat he failed to present any medical evidence in connection with his CPL 440.10 motionto support his claim that he has been diagnosed with the disorder, and there is no suchevidence in the record before us. These circumstances do not warrant reversal of eitherthe judgment of conviction or the denial of his CPL 440.10 motion (see People v Vallee, 97 AD3d972, 973-974 [2012], lv denied 20 NY3d 1104 [2013]; see also People v Morin, 117AD3d 1315, 1316-1317 [2014]). Defendant's remaining arguments have beenconsidered and found to be lacking in merit.
Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur. Ordered that the judgment andorder are affirmed.