Opinion
405 KA 13-00726
03-27-2015
The PEOPLE of the State of New York, Respondent, v. Joseph RAUSCH, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Alicia M. Lilley of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Alicia M. Lilley of Counsel), for Respondent.
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.
Opinion MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that he was deprived of effective assistance of counsel by his attorney's failure to obtain a ruling on his suppression motion before defendant pleaded guilty to the charge. We affirm.
Contrary to defendant's initial contention that his waiver of the right to appeal is not valid, “the record establishes that County Court ‘engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Glasper, 46 A.D.3d 1401, 1401, 847 N.Y.S.2d 875, lv. denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252 ; see People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 ), and the “[c]ourt's plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Buske, 87 A.D.3d 1354, 1354, 930 N.Y.S.2d 155, lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 751, 963 N.E.2d 128 [internal quotation marks omitted] ).
Defendant's contention that he was denied effective assistance of counsel survives his plea and valid waiver of the right to appeal only insofar as he demonstrates that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney['s] allegedly poor performance” (People v. Gleen, 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [internal quotation marks omitted]; see People v. Jackson, 90 A.D.3d 1692, 1694, 936 N.Y.S.2d 462, lv. denied 18 N.Y.3d 958, 944 N.Y.S.2d 487, 967 N.E.2d 712 ). Here, to the extent that defendant contends that his plea was infected by the allegedly ineffective assistance of counsel, i.e., defense counsel's failure to request a suppression ruling, that contention “involve[s] matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL article 440” (People v. Bethune, 21 A.D.3d 1316, 1316, 801 N.Y.S.2d 196, lv. denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.