Opinion
2016–09490 Ind. No. 1659/14
10-24-2018
The PEOPLE, etc., respondent, v. Christopher Barnes WILLIAMS, also known as Christopher Williams, appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman, Roslyn, of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman, Roslyn, of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert Charles Kohm, J.), rendered July 11, 2016, convicting him of conspiracy in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
At the outset of the plea proceeding, defense counsel inquired on behalf of the defendant "if [the defendant] is eligible for any programs, Shock or Casis that the court will not oppose them." The Supreme Court responded that it would not oppose the defendant's inclusion in any program, and explained that it had no control over whether the defendant was accepted into any program.
The defendant contends that his plea was not knowing, voluntary, or intelligent because the Supreme Court induced his plea with a promise that he would be eligible for, and admitted to, the Shock incarceration program (see Correction Law § 865[1] ), a promise that the defendant claims the court could not fulfill. The contention survives the defendant's valid waiver of his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d 248, 254, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ; People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539 ). However, the contention is without merit. Examination of the plea transcript makes clear that neither the defendant's eligibility for the Shock incarceration program, nor his ultimate admission to that program, was a condition of the plea (see People v. Bennett, 144 A.D.3d 697, 698, 39 N.Y.S.3d 830 ; People v. Whitty, 140 A.D.3d 802, 30 N.Y.S.3d 886 ; People v. Williams, 84 A.D.3d at 1418, 924 N.Y.S.2d 539 ; People v. Martinez, 56 A.D.3d 800, 867 N.Y.S.2d 692 ; People v. Christian, 158 A.D.2d 705, 706, 552 N.Y.S.2d 155 ).
By waiving his right to appeal, the defendant gave up his right to challenge the adequacy of his attorney's representation, except insofar as counsel's alleged ineffectiveness affected the voluntariness of the defendant's plea of guilty (see People v. Upson, 134 A.D.3d 1058, 21 N.Y.S.3d 688 ; People v. Haywood, 122 A.D.3d 769, 769–770, 996 N.Y.S.2d 137 ; People v. Williams, 84 A.D.3d at 1418, 924 N.Y.S.2d 539 ). In reviewing that limited claim, we find that counsel was not ineffective (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112 ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
DILLON, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.