| People v Rausch |
| 2015 NY Slip Op 02643 [126 AD3d 1535] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Rausch, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Alicia M. Lilley of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered May 8, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that he was deprived of effective assistance of counsel by hisattorney's failure to obtain a ruling on his suppression motion before defendant pleadedguilty to the charge. We affirm.
Contrary to defendant's initial contention that his waiver of the right to appeal is notvalid, "the record establishes that County Court 'engage[d] the defendant in an adequatecolloquy to ensure that the waiver of the right to appeal was a knowing and voluntarychoice' " (People vGlasper, 46 AD3d 1401, 1401 [2007], lv denied 10 NY3d 863 [2008];see People v Wright, 66AD3d 1334, 1334 [2009], lv denied 13 NY3d 912 [2009]), and the "[c]ourt'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 contention that he was denied effective assistance of counsel surviveshis plea and valid waiver of the right to appeal only insofar as he demonstrates that "theplea bargaining process was infected by [the] allegedly ineffective assistance or thatdefendant entered the plea because of [his] attorney['s] allegedly poor performance" (People v Gleen, 73 AD3d1443, 1444 [2010], lv denied 15 NY3d 773 [2010] [internal quotation marksomitted]; see People vJackson, 90 AD3d 1692, 1694 [2011], lv denied 18 NY3d 958 [2012]).Here, to the extent that defendant contends that his plea was infected by the allegedlyineffective assistance of counsel, i.e., defense counsel's failure to request a suppressionruling, that contention "involve[s] matters outside the record on appeal and thereforemust be raised by way of a motion pursuant to CPL article 440" (People v Bethune, 21 AD3d1316, 1316 [2005], lv denied 6 NY3d 752 [2005]). Present—Smith,J.P., Valentino, Whalen and DeJoseph, JJ.