| People v Wingfield |
| 2020 NY Slip Op 01819 [181 AD3d 1253] |
| March 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jerome Wingfield, Appellant. (Appeal No.1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kaixi Xu of counsel), fordefendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel),for respondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered May 1, 2017. The judgment convicted defendant upon his plea of guilty ofassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal Nos. 1 and 2, defendant appeals from judgments convictinghim upon his pleas of guilty during a single plea proceeding of, respectively, assault inthe second degree (Penal Law § 120.05 [2]) and attempted burglary in thesecond degree (§§ 110.00, 140.25 [2]). Contrary to defendant'scontention with respect to both appeals, the record establishes that he knowingly,intelligently, and voluntarily waived his right to appeal, and that he understood that theright to appeal is separate and distinct from the rights automatically forfeited by pleadingguilty (see People v Bryant,28 NY3d 1094, 1096 [2016]; People v Moore, 158 AD3d 1312, 1312 [4th Dept 2018],lv denied 31 NY3d 1015 [2018]). Defendant's valid waiver of the right to appealencompasses his challenge in each appeal to the severity of the sentence (see People v Lopez, 6 NY3d248, 255-256 [2006]).
Defendant further contends in each appeal that he was denied effective assistance ofcounsel based on defense counsel's failure to seek suppression of certain statements madeby defendant following his warrantless arrest at a residence on the ground that they wereobtained in violation of Payton v New York (445 US 573 [1980]). To the extentthat defendant's contention survives his guilty pleas and valid waiver of the right toappeal (see People v Ware,159 AD3d 1401, 1402 [4th Dept 2018], lv denied 31 NY3d 1122 [2018]),we conclude that it lacks merit because an argument for suppression on that groundwould have had "little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005] [internalquotation marks omitted]; seegenerally People v Bunce, 141 AD3d 536, 537 [2d Dept 2016], lvdenied 28 NY3d 969 [2016]).
Defendant also contends in each appeal that County Court erred in sentencing him asa second felony offender based on his prior felony conviction in the State of Georgiabecause the Georgia statute under which he was convicted applies to conduct that doesnot constitute a felony in New York. We conclude, however, that defendant's contentionis unpreserved for our review inasmuch as defendant never "raise[d] the issue. . . whether the statute under which he was convicted in [Georgia] is theequivalent of a New York . . . felony" at the plea colloquy or sentencing (People v Kelly, 65 AD3d886, 887 [1st Dept 2009], lv denied 13 NY3d 860 [2009], deniedreconsideration 15 NY3d 775 [2010]; see generally People v Smith, 73NY2d 961, 962-963 [1989]). Although there is a " 'narrow exception to thepreservation rule' " permitting appellate review when a sentence's illegality isreadily discernible from the record (People v Nieves, 2 NY3d 310, 315 [2004], quotingPeople v Samms, 95 NY2d 52, 56 [2000]), this case does not fall within thatnarrow exception inasmuch as defendant's contention is based on matters outside therecord and may not be evaluated simply by comparing the relevant statutes under NewYork's strict equivalency test (see generally People v Helms, 30 NY3d 259, 263-265[2017]). Finally, because "[a] CPL 440.20 motion is the proper vehicle for raising achallenge to a sentence as 'unauthorized, illegally imposed or otherwise invalid as amatter of law' (CPL 440.20 [1]), and a determination of second felony offender status isan aspect of the sentence" (People v Jurgins, 26 NY3d 607, 612 [2015]), we decline toexercise our power to review defendant's contention as a matter of discretion in theinterest of justice. Present—Carni, J.P., Lindley, Curran, Winslow and Bannister,JJ.