| People v Massey |
| 2017 NY Slip Op 03310 [149 AD3d 1524] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jerry Massey, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered June12, 2015. The judgment convicted defendant, upon his plea of guilty, of burglary in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofburglary in the second degree (Penal Law § 140.25 [2]). We reject defendant'scontention that his waiver of the right to appeal was not knowingly, voluntarily, and intelligentlyentered (see generally People vLopez, 6 NY3d 248, 256 [2006]). County Court "did not conflate that right with thoseautomatically forfeited by a guilty plea" (People v McCrea, 140 AD3d 1655, 1655 [2016], lv denied28 NY3d 933 [2016] [internal quotation marks omitted]), and we conclude that "the courtengaged defendant 'in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice' " (People v Marshall, 144 AD3d 1544, 1545 [2016]). Defendant'scontention that his plea was not knowingly, voluntarily, and intelligently entered because he didnot recite the elements of the crime and only agreed with the court's description of the incident isactually a challenge to the factual sufficiency of the plea allocution, which is foreclosed bydefendant's valid waiver of the right to appeal (see People v Dale, 142 AD3d 1287, 1288 [2016], lv denied28 NY3d 1144 [2017]).
Defendant further contends that his guilty plea was not knowingly, intelligently, andvoluntarily entered and that the court abused its discretion in denying his motion to withdraw hisplea on that ground without first conducting a hearing. Although that contention survivesdefendant's waiver of the right to appeal (see id.), the record establishes that defendantwithdrew his motion to withdraw his guilty plea and thereby waived any contention with respectto that motion (see People v Harris,97 AD3d 1111, 1112 [2012], lv denied 19 NY3d 1026 [2012]; People v Gilliam, 96 AD3d 1650,1651 [2012], lv denied 19 NY3d 1026 [2012]).
To the extent that defendant's contention that he was denied effective assistance of counselsurvives his valid waiver of the right to appeal (see People v Rausch, 126 AD3d 1535, 1535 [2015], lvdenied 26 NY3d 1149 [2016]), we conclude that it lacks merit. Defendant has not shown thathis motion to withdraw his guilty plea would have been successful if not withdrawn (seeHarris, 97 AD3d at 1112). Moreover, defendant "receive[d] an advantageous plea andnothing in the record casts doubt on the apparent effectiveness of [defense] counsel"(Dale, 142 AD3d at 1290 [internal quotation marks omitted]).
Finally, the valid waiver of the right to appeal forecloses defendant's challenge to the severityof his sentence (see generally Lopez, 6 NY3d at 255-256). Present—Centra, J.P.,Carni, Lindley, Curran and Troutman, JJ.