Opinion
2017–02807 Ind. No. 44/16
08-01-2018
The PEOPLE, etc., respondent, v. Walter COLEMAN, appellant.
Gary E. Eisenberg, New City, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.
Gary E. Eisenberg, New City, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., SHERI S. ROMAN, SANDRA L. SGROI, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered September 28, 2016, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that his preplea request to relieve assigned counsel and to substitute new counsel was improperly denied (see People v. Harris, 153 A.D.3d 552, 552–553, 56 N.Y.S.3d 877 ; People v. Weston, 145 A.D.3d 746, 747, 43 N.Y.S.3d 413 ).
Although the defendant's contention regarding the voluntariness of his plea survives his valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Lujan, 114 A.D.3d 963, 964, 980 N.Y.S.2d 815 ), the defendant failed to preserve for appellate review his contention that his plea of guilty was not knowing, voluntary, or intelligent, since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v. McClenic, 155 A.D.3d 1064, 64 N.Y.S.3d 554 ; People v. Coachman, 154 A.D.3d 957, 63 N.Y.S.3d 94 ). Furthermore, as the People correctly contend, the narrow exception to the preservation rule is inapplicable in this case, as the defendant's recitation of the facts underlying his plea to the charged crime did not clearly cast significant doubt upon his guilt, negate an essential element of the crime, or otherwise call into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Fuentes, 124 A.D.3d 677, 678, 1 N.Y.S.3d 305 ). In any event, the record reflects that the defendant's plea of guilty was knowing, voluntary, and intelligent (see People v. Seeber, 4 N.Y.3d 780, 780–781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Amay, 156 A.D.3d 895, 65 N.Y.S.3d 804 ; People v. Weston, 145 A.D.3d at 747, 43 N.Y.S.3d 413 ). The defendant's contention that his counsel's conduct affected the voluntariness of his plea is belied by his statements during the plea proceeding, in which he acknowledged under oath that he was satisfied with his counsel's representation, that he had not been forced into pleading guilty, and that he was entering the plea voluntarily (see People v. Boria, 157 A.D.3d 811, 812, 69 N.Y.S.3d 3 ; People v. Weston, 145 A.D.3d at 747, 43 N.Y.S.3d 413 ; People v. Cobb, 19 A.D.3d 506, 798 N.Y.S.2d 477 ).
SCHEINKMAN, P.J., ROMAN, SGROI and MALTESE, JJ., concur.