| People v Hendrix |
| 2019 NY Slip Op 03984 [172 AD3d 1224] |
| May 22, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andre Lamont Hendrix, Also Known as "Daddy Roe,"Appellant. |
Del Atwell, East Hampton, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T.McLoughlin, J.), rendered November 29, 2017, convicting him of criminal possession of acontrolled substance in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waivedhis right to appeal (see People vSanders, 25 NY3d 337, 339-342 [2015]; People v Lopez, 6 NY3d 248, 256-257 [2006]; cf. People v Brown, 122 AD3d133, 145-146 [2014]).
Although the defendant's contention regarding the voluntariness of his plea survives his validwaiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Lujan, 114 AD3d 963,964 [2014]), the defendant failed to preserve this contention for appellate review (see People v McClenic, 155 AD3d1064 [2017]; People vCoachman, 154 AD3d 957 [2017]; People v Martin, 27 AD3d 579 [2006]). In any event, thecontention is without merit, as the record reflects that the defendant's plea of guilty was knowing,voluntary, and intelligent (see People vSeeber, 4 NY3d 780, 780-781 [2005]; People v Fiumefreddo, 82 NY2d 536, 543[1993]; People v Miranda, 67 AD3d709, 710 [2009]).
The defendant's contention that his factual allocution was insufficient because he did notadmit the "possession" element of criminal possession of a controlled substance in the thirddegree is unpreserved for appellate review (see People v Purnell, 166 AD3d 814, 816 [2018]; People v Martin, 27 AD3d 579[2006]; People v Pryor, 11 AD3d565 [2004]). In any event, this contention is without merit, as the defendant's allocution wassufficient (see Penal Law §§ 10.00 [8]; 220.16 [1]; People v Johnson, 165 AD3d 701,701-702 [2018]; People v Dorrah,50 AD3d 1619, 1619 [2008]; People v Webb, 286 AD2d 899 [2001]; People vKing, 114 AD2d 424 [1985]).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that he was deprived of the effective assistance of counsel, except to the extent thatthe alleged ineffective assistance affected the voluntariness of his plea (see People v Rodriguez, 144 AD3d950, 950 [2016]; People vMoore, 140 AD3d 1091 [2016]; People v Upson, 134 AD3d 1058 [2015]). To the extent that thedefendant's ineffective assistance of counsel claim survives his valid waiver of the right toappeal, his contention is without merit (see People v Rodriguez, 144 AD3d at 950;People v Moore, 140 AD3d at 1092; People v Mack, 90 AD3d 1317, 1322 [2011]). Mastro, J.P.,LaSalle, Barros and Connolly, JJ., concur.