| People v Pace |
| 2021 NY Slip Op 01450 [192 AD3d 1274] |
| March 11, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Willie Pace, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Mott, J.), rendered May 19, 2019 inUlster County, convicting defendant upon his plea of guilty of the crime of criminal possessionof a weapon in the second degree.
Defendant was indicted and charged with one count of criminal possession of a weapon inthe second degree. Following a suppression hearing, defendant agreed to plead guilty to thecharged crime with the understanding that he would be sentenced—as a prior violentfelony offender—to a prison term of 10 years followed by five years of postreleasesupervision. The plea agreement, which required defendant to waive his right to appeal, alsoencompassed three pending felony drug charges in Kingston City Court, and the District Attorneyfurther agreed to extend certain consideration to a codefendant with whom defendant had arelationship. Defendant pleaded guilty, and the matter immediately proceeded to sentencing, atwhich time Supreme Court imposed the contemplated sentence. Defendant appeals.
We affirm. To the extent that defendant's brief may be read as contesting the validity of hiswaiver of the right to appeal, we find any such challenge to be unpersuasive. Although SupremeCourt's explanation of the waiver "arguably could have been more expansive" (People v Charles, 163 AD3d 1362,1362 [2018], lv denied 32 NY3d 1063 [2018]), the record reflects that defendant wasaware that an appeal waiver was a condition of the plea agreement and that Supreme Court, inturn, explained that such waiver was separate and distinct from the trial-related rights thatdefendant was forfeiting by pleading guilty. Defendant, who indicated that he had discussed thewaiver with counsel, assured the court that he understood the nature of the appeal waiver and waswilling to relinquish that right. Defendant thereafter executed a written waiver, which heacknowledged counsel had read to him, in open court. Accordingly, and as we otherwise discernno other infirmities in the waiver (compare People v Thomas, 34 NY3d 545, 562-563 [2019]), we aresatisfied that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Jones, 182 AD3d698, 699 [2020]; People vHaggray, 172 AD3d 1825, 1825 [2019], lv denied 34 NY3d 932 [2019]).
To the extent that it impacts upon the voluntariness of his plea, defendant's claim that he wasdenied the effective assistance of counsel survives his valid appeal waiver (see e.g. People v Jones, 171 AD3d1249, 1250 [2019], lv denied 33 NY3d 1070 [2019]). Under the particular facts ofthis case, such claim is not subject to the preservation requirement, as Supreme Court sentenceddefendant immediately following defendant's guilty plea and, therefore, defendant had "nopractical opportunity" to move to withdraw his plea prior to sentencing (People v Rebelo, 137 AD3d 1315,1316 [2016], lv denied 28 NY3d 936 [2016], cert denied 580 US &mdash, 137 SCt 385 [2016]; see People vConceicao, 26 NY3d 375, 381[*2]-382 [2015]; People v Wright, 154 AD3d 1015,1016 [2017], lv denied 30 NY3d 1065 [2017]; compare People v Orellana, 181 AD3d 457, 457 [2020], lvdenied 35 NY3d 1028 [2020]). That said, we find defendant's ineffective assistance ofcounsel claim, which is premised upon counsel's failure to clarify or correct certain statementsmade by Supreme Court and/or to argue for leniency at sentencing, to be unpersuasive. "In thecontext of a guilty plea, a defendant has been afforded meaningful representation when he or shereceives an advantageous plea and nothing in the record casts doubt upon the apparenteffectiveness of counsel" (People v Haggray, 172 AD3d at 1825 [internal quotationmarks and citations omitted]; accordPeople v Payson, 189 AD3d 1820, 1822 [2020]). Having found defendant's waiver ofthe right to appeal to be valid, defense counsel cannot be faulted for failing to correct orchallenge the adequacy of Supreme Court's colloquy in this regard. Similarly, although SupremeCourt indeed mistakenly cited Penal Law § 70.08 (persistent violent felonyoffender) instead of Penal Law § 70.04 (second violent felony offender) whendiscussing defendant's predicate felon status, the record nonetheless reflects that defendant, whoreadily admitted his prior violent felony conviction, was properly sentenced as a second violentfelony offender. Finally, given the favorable plea agreement, which included the dismissal ofother pending charges and afforded defendant the benefit of a sentence that was well within thepermissible statutory range (see Penal Law § 70.04 [3] [b]), we find thatdefendant received meaningful representation.
Garry, P.J., Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.