| People v Weinstock |
| 2015 NY Slip Op 05356 [129 AD3d 1663] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavid J. Weinstock, Appellant. |
Shirley A. Gorman, Brockport, for defendant-appellant.
David J. Weinstock, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered May 12, 2011. The judgment convicted defendant, upon his plea of guilty, ofrape in the first 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 rape in the first degree (Penal Law § 130.35 [1]). We rejectdefendant's contention in his main and pro se supplemental briefs that his waiver of theright to appeal was invalid. We agree with defendant that County Court's statement todefendant that, "by pleading guilty, [he was giving] up [his] right to allege [that] thepolice unlawfully collected evidence or did anything else illegal" was misleading insofaras it improperly implied that defendant's right to challenge the court's suppression rulingon appeal was forfeited upon entry of the guilty plea (see People v Braxton, 129AD3d 1674, 1674 [2015]; seegenerally People v Moyett, 7 NY3d 892, 892-893 [2006]; People vBillingslea, 6 NY3d 248, 257 [2006]). "Nevertheless, we conclude that [the court's]plea 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" (Braxton, 129 AD3d at 1674 [internal quotation marks omitted]; see People v Buske, 87 AD3d 1354, 1354 [2011], lvdenied 18 NY3d 882 [2012]). That valid waiver of the right to appeal encompasseshis contention that the court erred in refusing to suppress identification testimony (see People v Jenkins, 117AD3d 1528, 1529 [2014], lv denied 23 NY3d 1063 [2014]). By pleadingguilty, moreover, defendant forfeited his further contention that the court erred inrefusing to reopen the Wade hearing (see People v Fulton, 30 AD3d 961, 962 [2006], lvdenied 7 NY3d 789 [2006]).
Contrary to the contentions in defendant's main and pro se supplemental briefs, thecourt afforded him a reasonable opportunity to advance the claims in his pro se motion towithdraw his guilty plea (see People v Frederick, 45 NY2d 520, 525 [1978];People v Tinsley, 35 NY2d 926, 927 [1974]), and "the court did not abuse itsdiscretion in discrediting those claims" (People v Merritt, 115 AD3d 1250, 1250-1251 [2014]). Nordid the court abuse its discretion in denying defendant's request for new counsel on themotion to withdraw the guilty plea inasmuch as defense counsel did not take a positionadverse to the motion (seePeople v Rossborough, 105 AD3d 1332, 1333 [2013], lv denied 21NY3d 1045 [2013]). Further, defense counsel's failure to join in the motion did notconstitute ineffective assistance (see People v Carpenter, 93 AD3d 950, 952 [2012], lvdenied 19 NY3d 863 [2012]).
The contention in defendant's pro se supplemental brief that the court erred inimposing an enhanced sentence based upon an uncharged crime survives his waiver ofthe right to appeal (see People vWilliams, 35 AD3d 1198, 1199 [2006], lv denied 8 NY3d 928 [2007]).That contention lacks merit, however, inasmuch as "the record establishes that the courtdid not impose an enhanced sentence but in fact imposed the agreed-upon sentence" (People v Ibrahim, 48 AD3d1095, 1095 [2008], [*2]lv denied 10 NY3d864 [2008]). Present—Scudder, P.J., Smith, Sconiers, Valentino and DeJoseph,JJ.