| People v Cunningham |
| 2023 NY Slip Op 00592 [213 AD3d 1270] |
| February 3, 2023 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Gregory S. Cunningham, Appellant. |
Hayden M. Dadd, Conflict Defender, Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Kevin Van Allen, J.),rendered August 3, 2021. The judgment convicted defendant upon a plea of guilty ofassault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of assault in the first degree (Penal Law § 120.10 [1]). Contrary todefendant's contention, his waiver of the right to appeal was knowing, voluntary, andintelligent (see generally Peoplev Thomas, 34 NY3d 545, 564 [2019], cert denied 589 US &mdash, 140S Ct 2634 [2020]; People vBrackett, 174 AD3d 1542, 1542 [4th Dept 2019], lv denied 34 NY3d949 [2019]). That valid waiver forecloses defendant's challenges to the severity of thesentence (see People vLopez, 6 NY3d 248, 255 [2006]; People v Hidalgo, 91 NY2d 733, 737[1998]) and the factual sufficiency of his plea allocution (see People v Oliver, 178 AD3d1463, 1464 [4th Dept 2019], lv denied 39 NY3d 987 [2022]; People v Yates, 173 AD3d1849, 1850 [4th Dept 2019]; People v Steinbrecher, 169 AD3d 1462, 1463 [4th Dept2019], lv denied 33 NY3d 1108 [2019]).
Defendant further contends that his plea was not knowingly, voluntarily, andintelligently entered because a potential defense was raised both prior to the pleaproceeding and by statements he made at sentencing. Although that contention survivesdefendant's waiver of the right to appeal, it is not preserved for our review becausedefendant failed to move to withdraw his guilty plea or to vacate the judgment ofconviction on that ground (seePeople v Brown, 204 AD3d 1519, 1519 [4th Dept 2022], lv denied 38NY3d 1069 [2022]; People vAllen, 137 AD3d 1719, 1720 [4th Dept 2016], lv denied 27 NY3d 1127[2016]; People v Wilson,115 AD3d 1229, 1229 [4th Dept 2014], lv denied 23 NY3d 969 [2014]).The narrow exception to the preservation rule set forth in People v Lopez (71NY2d 662, 666 [1988]) does not apply in this case because defendant said "[n]othing. . . during the plea colloquy itself" that negated an element of thepleaded-to crime or otherwise called into doubt the voluntariness of his plea (People v Mobayed, 158 AD3d1221, 1222 [4th Dept 2018], lv denied 31 NY3d 1015 [2018]; see also People v Romanowski,196 AD3d 1081, 1082 [4th Dept 2021], lv denied 37 NY3d 1029[2021]).
Defendant's contention that he was denied effective assistance of counsel surviveshis guilty plea and valid waiver of the right to appeal "only insofar as he demonstratesthat the plea bargaining process was infected by [the] allegedly ineffective assistance orthat defendant entered the plea because of [his] attorney['s] allegedly poor performance"(People v Rausch, 126AD3d 1535, 1535 [4th Dept 2015] [internal quotation marks omitted], lv denied26 NY3d 1149 [2016]). To the extent that defendant's contention is based on defensecounsel's alleged failure to investigate or prepare a defense of mental disease or defect, itis unreviewable on direct appeal because it involves matters outside the record (see People v Boyde, 71 AD3d1442, 1443 [4th [*2]Dept 2010], lv denied15 NY3d 747 [2010]; People vWashington, 39 AD3d 1228, 1230 [4th Dept 2007], lv denied 9 NY3d870 [2007]). To the extent that defendant's contention survives his plea and appealwaiver and is reviewable on direct appeal, we conclude that it lacks merit inasmuch asnothing in the record suggests that defense counsel's representation was anything lessthan meaningful (see Boyde, 71 AD3d at 1443). Present—Whalen, P.J.,Smith, Curran, Montour and Ogden, JJ.