| People v Reinard |
| 2015 NY Slip Op 09464 [134 AD3d 1407] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDonald W. Reinard, Appellant. (Appeal No. 1.) |
David J. Farrugia, Public Defender, Lockport (Mary-Jean Bowman of counsel), fordefendant-appellant.
Donald W. Reinard, defendant-appellant pro se.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedJune 8, 2010. The judgment convicted defendant, upon his plea of guilty, of course ofsexual conduct against a child in the first degree and attempted sexual abuse in the firstdegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him,upon his plea of guilty, of one count of course of sexual conduct against a child in thefirst degree (Penal Law § 130.75 [1] [a]) and two counts of attemptedsexual abuse in the first degree (§§ 110.00, 130.65 [3]). In appeal No.2, defendant appeals from a judgment convicting him, upon his plea of guilty, of courseof sexual conduct against a child in the first degree (§ 130.75 [1] [a]).
In his main and pro se supplemental briefs, defendant contends in both appeals thathis respective waivers of the right to appeal were not valid. We reject those contentions.County Court's plea colloquies, together with the written waivers of the right to appeal,establish that defendant's waivers of the right to appeal were made knowingly,intelligently, and voluntarily (see People v Johnson, 122 AD3d 1324, 1324 [2014]; People v Arney, 120 AD3d949, 949 [2014]).
In both appeals, defendant contends in his main and pro se supplemental briefs thathis respective pleas were involuntarily entered. Although those contentions survive hisvalid waivers of the right to appeal, they are not preserved for our review inasmuch asdefendant failed to move to withdraw the respective pleas or to vacate the judgments ofconviction (see People vGuantero, 100 AD3d 1386, 1387 [2012], lv denied 21 NY3d 1004[2013]; People v Connolly,70 AD3d 1510, 1511 [2010], lv denied 14 NY3d 886 [2010]), and nothingin the plea colloquies casts significant doubt on defendant's guilt or the voluntariness ofhis pleas, and the narrow exception to the preservation requirement therefore does notapply (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Lewandowski, 82AD3d 1602, 1602 [2011]).
In both appeals, the valid waivers of the right to appeal encompass defendant'schallenges in his main and pro se supplemental briefs to the severity of the sentences(see People v Hidalgo, 91 NY2d 733, 737 [1998]). Defendant's contentions in hispro se supplemental brief that the sentences in both appeals were imposed in violation ofthe United States Constitution also survive his valid waivers of the right to appeal (see People v Lopez, 6 NY3d248, 255 [2006]), but we reject those contentions inasmuch as it cannot be said thatthe sentences are "grossly disproportionate to the crime[s]" (People v Broadie, 37NY2d 100, 111 [1975], cert denied 423 US 950 [1975]; see generally Peoplev Thompson, 83 NY2d 477, 484 [1994]).
[*2] Contrary to defendant's contention in his pro sesupplemental brief in appeal No. 1, his waiver of indictment and consent to beprosecuted under a superior court information was not jurisdictionally defective (seegenerally CPL 195.10 [1] [b]; People v D'Amico, 76 NY2d 877, 879[1990]).
Defendant's challenges in both appeals to the constitutionality of various statuteswere not preserved for our review inasmuch as they were not raised during proceedingsin County Court (see People vWhitehead, 46 AD3d 715, 716 [2007], lv denied 10 NY3d 772 [2008]).In any event, those challenges are not properly before us inasmuch as defendant failed tonotify the Attorney General that he would be making those challenges (see People v Mills, 117 AD3d1555, 1556 [2014], lv denied 24 NY3d 1045 [2014], reconsiderationdenied 24 NY3d 1121 [2014]; Whitehead, 46 AD3d at 716).
Defendant's contention in his pro se supplemental brief that he was denied effectiveassistance of counsel in both appeals does not survive his guilty pleas or the waivers ofthe right to appeal because defendant "failed to demonstrate that 'the plea bargainingprocess was infected by [the] allegedly ineffective assistance or that [he] entered the pleabecause of his attorney['s] allegedly poor performance' " (People v Grandin, 63 AD3d1604, 1604 [2009], lv denied 13 NY3d 744 [2009]). We have reviewed theremaining contentions in both appeals in defendant's pro se supplemental brief andconclude that they do not require reversal or modification of the judgments.Present—Scudder, P.J., Centra, Peradotto, Lindley and Valentino, JJ.