| People v Baker |
| 2019 NY Slip Op 06358 [175 AD3d 1113] |
| August 22, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Trevis D. Baker, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Michael S. Deal of counsel), fordefendant-appellant.
Trevis D. Baker, defendant-appellant pro se.
Joseph V. Cardone, District Attorney, Albion (Susan M. Howard of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered May 15,2017. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted criminal sale of a controlled substance in the third degree (Penal Law§§ 110.00, 220.39 [1]), defendant contends in his main brief that his waiver ofthe right to appeal is invalid. We reject that contention. We conclude that "the plea colloquy herewas sufficient because the right to appeal was adequately described without lumping it into thepanoply of rights normally forfeited upon a guilty plea" (People v Sanders, 25 NY3d 337, 341 [2015]; see People v Lopez, 6 NY3d 248,257 [2006]). Contrary to defendant's contention, "[a]ny nonwaivable issues purportedlyencompassed by the waiver 'are excluded from the scope of the waiver [and] the remainder of thewaiver is valid and enforceable' " (People v Neal, 56 AD3d 1211, 1211 [4th Dept 2008], lv denied12 NY3d 761 [2009]; see People vGibson, 147 AD3d 1507, 1508 [4th Dept 2017], lv denied 29 NY3d 1032[2017]; People v Weatherbee, 147AD3d 1526, 1526 [4th Dept 2017], lv denied 29 NY3d 1038 [2017]). Defendant'svalid waiver encompasses his challenge in his main brief to the severity of his sentence (seeLopez, 6 NY3d at 255). Insofar as defendant in his pro se supplemental brief challenges thegeographic jurisdiction of County Court, that contention is actually a challenge to venue inOrleans County, which is also encompassed by his valid waiver of the right to appeal (see People v Parker, 151 AD3d1876, 1876 [4th Dept 2017], lv denied 30 NY3d 982 [2017]), and is forfeited as aresult of his plea of guilty (see People v Williams, 14 NY2d 568, 570 [1964]; People v De Alvarez, 59 AD3d732, 732-733 [2d Dept 2009], lv denied 12 NY3d 852 [2009]).
Finally, defendant's contention in his pro se supplemental brief that he was denied effectiveassistance of counsel survives his plea and valid waiver of the right to appeal "only insofar as hedemonstrates that the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that defendant entered the plea because of [his] attorney['s] allegedly poorperformance" (People v Rausch, 126AD3d 1535, 1535 [4th Dept 2015], lv denied 26 NY3d 1149 [2016] [internalquotation marks omitted]). To the extent that defendant contends that his attorney's failure toinvestigate a particular witness infected the plea process, that contention "involve[s] mattersoutside the record on appeal and therefore must be raised by way of a motion pursuant to CPLarticle 440" (People v Bethune, 21AD3d 1316, 1316 [4th Dept 2005], lv denied 6 NY3d 752 [2005]; see also People v Kaminski, 109 AD3d1186, 1186 [4th Dept 2013], lv denied 22 NY3d 1088 [2014]). To the extent thatdefendant's contention is reviewable on direct appeal, we conclude that it lacks merit inasmuchas he "receive[d] an advantageous plea and nothing in the record casts doubt on the apparenteffectiveness of counsel" (People vBooth, 158 AD3d 1253, 1255 [4th Dept 2018], lv denied 31 NY3d 1078 [2018][internal quotation marks omitted]). Present—Smith, J.P., Peradotto, Carni, NeMoyer andWinslow, JJ.