| People v Steinmetz |
| 2018 NY Slip Op 02089 [159 AD3d 1577] |
| March 23, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v David J.Steinmetz, Jr., Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedOctober 30, 2013. The judgment convicted defendant, upon his plea of guilty, of criminalmischief in the third degree.
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,of criminal mischief in the third degree (Penal Law § 145.05 [2]). We rejectdefendant's contention that his waiver of the right to appeal is invalid. Defendant signed a pleaagreement that required him to waive his right to appeal, and County Court's "plea colloquy,together with the written waiver of the right to appeal, adequately apprised defendant that 'theright to appeal is separate and distinct from those rights automatically forfeited upon a plea ofguilty' " (People vKulyeshie, 71 AD3d 1478, 1478 [4th Dept 2010], lv denied 14 NY3d 889[2010]; see People v Bryant, 28NY3d 1094, 1095-1096 [2016]). Even assuming, arguendo, that defendant's challenges tohis Alford plea survive his valid waiver of appeal, we conclude that those challenges areunpreserved for our review because defendant failed to raise them as part of a motion towithdraw his plea or to vacate the judgment of conviction (see People v Miller, 87 AD3d 1303, 1303-1304 [4th Dept 2011],lv denied 18 NY3d 926 [2012]; People v Sherman, 8 AD3d 1026, 1026 [4th Dept 2004], lvdenied 3 NY3d 681 [2004]), and this case does not fall within the narrow exception to thepreservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Rivers, 145 AD3d 1591,1592 [4th Dept 2016], lv denied 29 NY3d 952 [2017]). Finally, to the extent thatdefendant's ineffective assistance of counsel contention survives his Alford plea andwaiver of the right to appeal, we conclude that it is without merit inasmuch as the record beforeus establishes that defendant was afforded meaningful representation (see People v Blarr[appeal No. 1], 149 AD3d 1606, 1606 [4th Dept 2017], lv denied 29 NY3d 1123[2017]). Present—Centra, J.P., Carni, DeJoseph, Troutman and Winslow, JJ.