At page 1490 Determining waiver and preservation of appeal claims13 citing cases“Thus, we conclude that defendant knowingly, voluntarily and intelligently waived his right to appeal his conviction and sentence (see People v Tolliver, 92 AD3d 1024, 1024 [2012]; People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]; People v Jean-Francois, 82 AD3d 1366, 1366…”
- People v. Williams, 150 A.D.3d 1549 (N.Y. App. Div. 3d Dep't 2017).publishedIn any event, the record reflects that County Court substantially complied with the statutory requirements (see People v Shelmandine, 128 AD3d at 1181; People v Walton, 101 AD3d at 1490).
- People v. Lowell, 126 A.D.3d 1235 (N.Y. App. Div. 3d Dep't 2015).publishedMoreover, reversal in the interest of justice is unwarranted under the circumstances presented herein (see People v Wilkins, 118 AD3d 1038, 1039 [2014], lv denied 24 NY3d 965 [2014]; People v Walton, 101 AD3d at 1490).
- People v. Smith, 123 A.D.3d 1375 (N.Y. App. Div. 3d Dep't 2014).published To the extent that defendant’s ineffective assistance of counsel claim impacts the voluntariness of his plea, it also survives his appeal waiver, but is likewise unpreserved for our review in the absence of an appropriate postallocution mo…
- People v. Watson, 110 A.D.3d 1109 (N.Y. App. Div. 3d Dep't 2013).published To the extent that defendant’s ineffective assistance of counsel argument relates to the voluntariness of his plea, it also survives his waiver of the right to appeal, but is likewise unpreserved (see People v Walton, 101 AD3d 1489, 1490 […
- People v. Bouton, 107 A.D.3d 1035 (N.Y. App. Div. 3d Dep't 2013).published Defendant’s ineffective assistance of counsel argument is similarly unpreserved for our review (see People v Walton, 101 AD3d 1489, 1490 [2012], lv denied 20 NY3d 1105 [2013]; People v Benson, 100 AD3d at 1109 ).
- People v. Mercer, 105 A.D.3d 1091 (N.Y. App. Div. 3d Dep't 2013).published Also, County Court held a hearing upon resentencing defendant, during which it afforded him an opportunity to articulate the nature of his constitutional challenge to the prior conviction (see CPL 400.21 [5], [7]; People v Walton, 101 AD3d…
- People v. Feliciano, 108 A.D.3d 880 (N.Y. App. Div. 3d Dep't 2013).published Nonetheless, even assuming, arguendo, that these “ineffective assistance of counsel claim[s] impact[ ] upon the voluntariness of [defendant’s] plea . . . , this issue is — absent record evidence of an appropriate postallocution motion — un…
- People v. Sulsona, 134 A.D.3d 861 (N.Y. App. Div. 2d Dep't 2015).publishedThe defendant’s contention that the Supreme Court erred in *862 sentencing him as a second felony offender is unpreserved for appellate review (see CPL 470.05 [2]; People v Nieves, 2 NY3d 310, 316 [2004]; People v Samms, 95 NY2d 52, 54-57…
Other citing cases
- People v. Ortiz, 155 A.D.3d 1241 (N.Y. App. Div. 3d Dep't 2017).published
v.
Robert D. Walton Jr.
Defendant’s waiver of the right to appeal was valid. Although he expressed some uncertainty regarding the appeal waiver at the inception of the plea colloquy, County Court explained to defendant the nature of the right to appeal and made clear that this right was separate and distinct from the rights forfeited by[*1490] the guilty plea. Defendant confirmed his understanding and declined further opportunity to discuss the waiver with counsel. Moreover, defendant executed a detailed written waiver. While such waiver was executed outside of court, he acknowledged his signature on the waiver and affirmed that he had discussed the waiver with counsel. Thus, we conclude that defendant knowingly, voluntarily and intelligently waived his right to appeal his conviction and sentence (see People v Tolliver, 92 AD3d 1024, 1024 [2012]; People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]; People v Jean-Francois, 82 AD3d 1366, 1366 [2011], lv denied 17 NY3d 797 [2011]).
Defendant’s valid appeal waiver precludes his challenge to County Court’s denial of his request for a Wade hearing (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Barrier, 7 AD3d 885, 886 [2004], lv denied 3 NY3d 670 [2004]; People v McGuffie, 294 AD2d 617, 618 [2002], lv denied 98 NY2d 699 [2002]). To the extent that defendant’s ineffective assistance of counsel claim impacts the voluntariness of his plea and, therefore, survives his waiver of appeal, it is unpreserved for our review inasmuch as the record before us fails to indicate that he moved to withdraw his guilty plea or vacate the judgment of conviction (see People v Holmes, 75 AD3d 834, 835 [2010], lv denied 15 NY3d 921 [2010]; People v Garland, 69 AD3d 1122, 1123 [2010], lv denied 14 NY3d 887 [2010]). Were we to reach the issue, we would find that defendant was provided with meaningful representation (see People v Flake, 95 AD3d 1371, 1372 [2012], lv denied 19 NY3d 973, 974 [2012]; People v Shurock, 83 AD3d 1342, 1344 [2011]; People v Lee, 51 AD3d 1217, 1218 [2008]).
Defendant’s claim that he was improperly sentenced as a second felony offender is likewise unpreserved, as he failed to object at sentencing (see People v Washington, 89 AD3d 1140, 1142 [2011], lv denied 18 NY3d 963 [2012]; People v Glynn, 72 AD3d 1351, 1351-1352 [2010], lv denied 15 NY3d 773 [2010]). In any event, defendant pleaded guilty with the understanding that he would be sentenced as a second felony offender, admitted that he was the person previously convicted of the felony set forth in the predicate felony statement, and had ample opportunity to controvert any aspect of the prior conviction. Under the circumstances, we find substantial compliance with CPL 400.21 (3) (see People v Smith, 89 AD3d 1328, 1328-1329 [2011]; People v Washington, 89 AD3d at 1142; People v Calif ano, 84 AD3d 1504, 1506-1507 [2011], lv denied 17 NY3d 805 [2011]).
Finally, defendant’s assertion that his sentence should be reduced in the interest of justice is barred by his valid appeal[*1491] waiver (see People v White, 96 AD3d 1299,1300 [2012], lv denied 19 NY3d 1029 [2012]; People v Board, 75 AD3d 833, 834 [2010]).
Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.