| People v Cooper |
| 2016 NY Slip Op 01084 [136 AD3d 1397] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDonald R. Cooper, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Gary M. Phillips of counsel), fordefendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of counsel),for respondent.
Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.),rendered December 16, 2013. The judgment convicted defendant, upon his plea of guilty,of driving while intoxicated, a class E felony and aggravated unlicensed operation of amotor vehicle in the second 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 driving while intoxicated (Vehicle and Traffic Law § 1192 [2])and aggravated unlicensed operation of a motor vehicle in the second degree(§ 511 [2] [a]). We note at the outset that the certificate of convictioncontains a clerical error, i.e., it incorrectly recites that defendant was convicted ofaggravated unlicensed operation of a motor vehicle in the first degree, and it musttherefore be amended to reflect that he was convicted of aggravated unlicensed operationof a motor vehicle in the second degree (see People v Saxton, 32 AD3d 1286, 1286-1287[2006]).
We agree with defendant that his waiver of the right to appeal is not valid (see People v Jackson, 99 AD3d1240, 1240-1241 [2012], lv denied 20 NY3d 987 [2012]). During the pleacolloquy, County Court "conflated the appeal waiver with the rights automaticallywaived by the guilty plea" (People v Martin, 88 AD3d 473, 474 [2011], affd 19NY3d 914 [2012]) and, thus, "the record fails to establish that defendant understood thatthe right to appeal is separate and distinct from those rights automatically forfeited upona plea of guilty" (Jackson, 99 AD3d at 1241 [internal quotation marks omitted]).Defendant failed to preserve for our review his contention with respect to the allegedinaccuracy of information relied upon by the court in sentencing him (see People v Lord, 59 AD3d1010, 1011 [2009], lv denied 12 NY3d 855 [2009]), and we decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [3] [c]). Defendant's contention that he was deniedeffective assistance of counsel does not survive his plea because defendant "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 vGrandin, 63 AD3d 1604, 1604 [2009] [internal quotation marks omitted], lvdenied 13 NY3d 744 [2009]). In any event, we conclude that defendant was affordedmeaningful representation inasmuch as he "receive[d] an advantageous plea and nothingin the record casts doubt on the apparent effectiveness of counsel" (People vFord, 86 NY2d 397, 404 [1995]; see People v Parson, 122 AD3d 1441, 1443 [2014]).Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J.,Peradotto, Carni, Lindley and DeJoseph, JJ.