| People v Yates |
| 2019 NY Slip Op 05294 [173 AD3d 1849] |
| June 28, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Phillip G. Yates, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Mark S. Sinkiewicz, Acting District Attorney, Waterloo, for respondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered August15, 2016. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the fifth 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 ofcriminal sale of a controlled substance in the fifth degree (Penal Law § 220.31).Contrary to defendant's contention, we conclude that his waiver of the right to appeal was valid(see People v Smith, 164 AD3d1621, 1621-1622 [4th Dept 2018], lv denied 32 NY3d 1177 [2019]). Here, CountyCourt engaged defendant in a sufficient colloquy to ascertain that defendant's waiver of the rightto appeal was made knowingly, intelligently, and voluntarily (see People v Lopez, 6 NY3d 248, 256 [2006]).
We further conclude that, "[a]lthough a valid waiver of the right to appeal would notpreclude defendant's challenge to the voluntariness of his plea, defendant failed to preserve thatchallenge for our review inasmuch as he did not move to withdraw the plea or to vacate thejudgment of conviction" (People vMobayed, 158 AD3d 1221, 1222 [4th Dept 2018], lv denied 31 NY3d 1015[2018]; see People v Cruz, 81 AD3d1300, 1301 [4th Dept 2011], lv denied 17 NY3d 793 [2011]). Contrary to defendant'scontention, this is not the "rare case in which the defendant's recitation of the facts underlying thecrime pleaded to clearly casts significant doubt upon [his] guilt or otherwise calls into questionthe voluntariness of the plea" (Mobayed, 158 AD3d at 1222 [internal quotation marksomitted]), and thus the exception to the preservation rule stated in People v Lopez (71NY2d 662, 666 [1988]) does not apply. Insofar as defendant also contests the factual sufficiencyof the plea colloquy, that contention is encompassed by his valid waiver of the right to appeal (see People v Oswold, 151 AD3d1756, 1756 [4th Dept 2017], lv denied 29 NY3d 1131 [2017]).
Defendant's contention that he was denied effective assistance of counsel survives his guiltyplea only insofar as he "contends that his plea was infected by the allegedly ineffective assistanceand that he entered the plea because of his attorney's allegedly poor performance" (People v Ware, 159 AD3d 1401,1402 [4th Dept 2018], lv denied 31 NY3d 1122 [2018] [internal quotation marksomitted]; see People v Bethune, 21AD3d 1316, 1316 [4th Dept 2005], lv denied 6 NY3d 752 [2005]). Defendant "mustshow that there is a reasonable probability that, but for counsel's errors, he would not havepleaded guilty and would have insisted on going to trial" (People v Hernandez, 22 NY3d 972, 975 [2013], cert denied572 US 1070 [2014] [internal quotation marks omitted]). Here, defendant failed to allegethat he would have proceeded to trial absent counsel's alleged deficiencies and does not explainhow those alleged deficiencies impacted his decision to enter a guilty plea. Thus, his contentionthat he did not receive effective assistance of counsel does not survive his guilty plea (seeWare, 159 AD3d at 1402).
Finally, we note that the certificate of conviction erroneously reflects that defendant wasconvicted of criminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [1]) and, as defendant requests, it should be amended to reflect that he wasconvicted of criminal sale of a controlled substance in the fifth degree (§ 220.31; see generally People v Armendariz, 156AD3d 1383, 1384 [4th Dept 2017], lv denied 31 NY3d 981 [2018]; People v Maloney, 140 AD3d1782, 1783 [4th Dept 2016]). Present—Whalen, P.J., Peradotto, Carni, Lindley andCurran, JJ.