| People v Ward |
| 2018 NY Slip Op 03878 [161 AD3d 1488] |
| May 31, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Brandon M. Ward, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered December 22, 2015, convicting defendant upon his plea of guilty of the crime of sexualabuse in the first degree.
Defendant was charged in two felony complaints and a criminal information with the crimesof criminal sexual act in the first degree, sexual abuse in the first degree (three counts) andendangering the welfare of a child (three counts). He waived indictment on these charges andagreed to be prosecuted by a superior court information charging him with one count of sexualabuse in the first degree. Defendant pleaded guilty to this crime in satisfaction of the abovecharges, as well as pending charges for burglary and grand larceny, and waived his right toappeal. County Court thereafter imposed the agreed-upon sentence of seven years in prison, to befollowed by 10 years of postrelease supervision. Defendant now appeals.
Initially, to the extent that defendant challenges the validity of his waiver of the right toappeal, the plea colloquy and the counseled written waiver executed in open court demonstratethat the waiver was knowing, intelligent and voluntary (see People v Crispell, 136 AD3d 1121, 1122 [2016], lvdenied 27 NY3d 1149 [2016]; People v Donah, 127 AD3d 1413, 1413 [2015]). The valid appealwaiver precludes defendant's contention that his sentence is harsh and excessive (see People v Bigwarfe, 155 AD3d1450, 1450 [2017]; People vWright, 154 AD3d 1015, 1016 [2017], lv denied 30 NY3d 1065[2017]).
[*2] With regard to defendant's claim thatcounsel's failure to move to dismiss the superior court information on statutory speedy trialgrounds deprived him of the effective assistance of counsel, thereby rendering his pleainvoluntary, the record is inadequate to assess the merits of such claim and, therefore, it is moreappropriately raised in a CPL article 440 motion (see People v Simpson, 146 AD3d 1175, 1176 [2017], lvdenied 30 NY3d 983 [2017]; Peoplev Viele, 130 AD3d 1097, 1097 [2015]). His further claim that counsel's motion practiceand discovery efforts—including counsel's failure to challenge the factual sufficiency ofthe felony complaint charging him with criminal sexual act in the first degree—constitutedineffective assistance of counsel was forfeited by his guilty plea (see People v Hansen, 95NY2d 227, 230 [2000]; People vJenkins, 130 AD3d 1091, 1092 [2015]; People v Trombley, 91 AD3d 1197, 1201 [2012], lv denied21 NY3d 914 [2013]).
Lynch, Devine, Clark and Pritzker, JJ., concur. Ordered that the judgment is affirmed.