| People v Kovalsky |
| 2018 NY Slip Op 08033 [166 AD3d 900] |
| November 21, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andrew Kovalsky, Appellant. |
Yasmin Daley Duncan, Brooklyn, NY, for appellant and appellant pro se.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Stephen L. Greller, J.), rendered April 29, 2013, convicting him of assault in the seconddegree (three counts), upon a plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligentlywaived his right to appeal (seePeople v Lopez, 6 NY3d 248, 256 [2006]). The defendant's valid waiver of hisright to appeal precludes appellate review of his contention that his pre-plea request tosubstitute new counsel was improperly denied (see People v Coleman, 164 AD3d 518 [2018]; People v Harris, 153 AD3d552, 552-553 [2017]; People v Weston, 145 AD3d 746, 747 [2016]).
Although the defendant's contention regarding the voluntariness of his plea surviveshis valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10[1989]; People v Lujan, 114AD3d 963, 964 [2014]), the defendant failed to preserve for appellate review hiscontention that his plea of guilty was not knowing, voluntary, or intelligent, since he didnot move to withdraw his plea on this ground prior to the imposition of sentence (see People v McClenic, 155AD3d 1064 [2017]; Peoplev Coachman, 154 AD3d 957 [2017]). The narrow exception to the preservationrule is inapplicable in this case, as the defendant's recitation of the facts underlying hisplea to the charged crime did not clearly cast significant doubt upon his guilt, negate anessential element of the crime, or otherwise call into question the voluntariness of hisplea (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Fuentes, 124 AD3d677, 678 [2015]). In any event, the record reflects that the defendant's plea of guiltywas knowing, voluntary, and intelligent (see People v Seeber, 4 NY3d 780, 780-781 [2005];People v Fiumefreddo, 82 NY2d 536, 543 [1993]).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention, raised in his pro se supplemental brief, that he was deprived of the effectiveassistance of counsel, except to the extent that the alleged ineffective assistance affectedthe voluntariness of his plea (seePeople v Rodriguez, 144 AD3d 950, 950 [2016]; People v Moore, 140 AD3d1091 [2016]; People vUpson, 134 AD3d 1058 [2015]). To the extent that the defendant's ineffectiveassistance of counsel claim survives his valid waiver of the right to appeal, his contentionis without merit (see People v [*2]Rodriguez, 144AD3d at 950; People v Moore, 140 AD3d at 1092).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontentions that certain counts in the indictment were multiplicitous (see People v Slingerland, 101AD3d 1265 [2012]), and that the sentence imposed was excessive (see People v Jiminez, 164AD3d 914 [2018]).
The defendant's remaining contentions raised in his pro se supplemental brief arewithout merit. Leventhal, J.P., Chambers, Sgroi and Connolly, JJ., concur.