At page 560 ferences with the Public Defender’s office and new counsel was assigned. A new plea bargain was reached pursuant to which defendant would plead guilty to the…12 citing cases
- People v. Archer, 2019 NY Slip Op 3110 (N.Y. App. Div. 3d Dep't 2019).publishedThe alleged failure of defense counsel to pursue a postjudgment motion does not impact the voluntariness of the plea and, therefore, such challenge [*2]is precluded by the waiver of the right to appeal ( see People v McDuffie , 43 AD3d 559…
- People v. Rifino, 143 A.D.3d 741 (N.Y. App. Div. 2d Dep't 2016).publishedThe defendant’s claim, with respect to his plea to the indictment, that he was deprived of his right to the effective assistance of counsel is precluded by his valid waiver of the right to appeal, except to the extent that the alleged inef…
- People v. Morey, 110 A.D.3d 1378 (N.Y. App. Div. 3d Dep't 2013).published Defendant’s claim on appeal that counsel failed to make pretrial rulings does not appear to implicate the voluntariness of his guilty plea and is, thus, precluded (see People v Gentry, 73 AD3d 1383, 1384 [2010]; People v McDuffie, 43 AD3d…
- People v. Cassara, 88 A.D.3d 1069 (N.Y. App. Div. 3d Dep't 2011).publishedAccordingly, we hold that defendant’s contentions are barred by his waiver of the right to appeal (see People v Santos-Rivera, 86 AD3d 790, 791 [2011]; People v Gentry, 73 AD3d 1383, 1384 [2010]; People v Leigh, 71 AD3d 1288, 1288 [2010],…
- People v. Santos-Rivera, 86 A.D.3d 790 (N.Y. App. Div. 3d Dep't 2011).publishedAs an initial matter, defendant’s valid waiver of his right to appeal precludes his claim of ineffective assistance to the extent that it did not impact the voluntariness of his plea (see People v Buckler, 80 AD3d 889, 890 [2011]; People v…
- People v. Mattison, 74 A.D.3d 1495 (N.Y. App. Div. 3d Dep't 2010).publishedFinally, defendant’s valid waiver of appeal precludes his argument that his counsel provided ineffective assistance except to the extent that it may have impacted the voluntariness of his plea (see People v Leonard, 63 AD3d 1278, 1278 [200…
- People v. Gentry, 73 A.D.3d 1383 (N.Y. App. Div. 3d Dep't 2010).publishedAlthough defendant’s waiver of the right to appeal does not bar his ineffective assistance of counsel claim insofar as it relates to the voluntariness of his plea (see People v Dobrouch, 59 AD3d 781 [2009], lv denied 12 NY3d 853 [2009]), c…
- People v. Leigh, 71 A.D.3d 1288 (N.Y. App. Div. 3d Dep't 2010).publishedDefendant’s argument on appeal that counsel failed to challenge the validity of a search warrant does not implicate the voluntariness of his plea and, therefore, is precluded (see People v McDuffie, 43 AD3d 559, 560 [2007], lv denied 9 NY3…
- People v. Anderson, 63 A.D.3d 1191 (N.Y. App. Div. 3d Dep't 2009).published“A challenge to the effectiveness of counsel is precluded by a waiver of appeal except to the extent that it impacts on the voluntariness of the plea” (People v McDuffie, 43 AD3d 559, 560 [2007], lv denied 9 NY3d 992 [2007] [citations omit…
- People v. Motz, 52 A.D.3d 1029 (N.Y. App. Div. 3d Dep't 2008).publishedInitially, we note that defendant cannot make these claims as a result of his decision to waive his right to appeal and that written waiver specifically stated that defendant was waiving his right to raise any claims of ineffective assista…
Show 2 more citing cases
- People v. Perry, 50 A.D.3d 1244 (N.Y. App. Div. 3d Dep't 2008).publishedFurthermore, defendant is foreclosed by his waiver of the right to appeal from challenging the effectiveness of his counsel except to the extent that it impacts the voluntariness of his plea (see People v McDuffie, 43 AD3d 559, 560 [2007],…
- People v. Gleen, 15 N.Y.3d 773 (N.Y. App. Div. 4th Dep't 2010).publishedThe further contention of defendant that she was denied effective assistance of counsel likewise does not survive her plea or her valid waiver of the right to appeal because defendant “failed to demonstrate that ‘the plea bargaining proces…
v.
Stacy McDuffie
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered April 2, 2004, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.
Defendant, who had been stopped for vehicle and traffic violations, was discovered to be in possession of a “cane sword.” He was indicted for criminal possession of a weapon in the third degree, a class D felony, as well as misdemeanor drug and vehicle and traffic charges. Defendant, who has a prior felony conviction, was first represented by the Public Defender’s office and it secured a plea bargain offer of 21/z to 5 years in prison in exchange for defendant’s plea to the class D felony in full satisfaction of the indictment. Defendant claimed irreconcilable dif[*560] ferences with the Public Defender’s office and new counsel was assigned. A new plea bargain was reached pursuant to which defendant would plead guilty to the class E nonviolent felony of attempted criminal possession of a weapon in the third degree in exchange for a prison sentence within the range of IV2 to 3 years as a minimum and 2 to 4 years as a maximum.
After a thorough colloquy which, among other things, included both defendant’s acknowledgment that his attorney contemplated further motions but that by pleading guilty he waived these and that he was not coerced into pleading guilty, he entered a plea of guilty and executed a written waiver of appeal. Prior to sentencing, based on defendant’s complaint that counsel was ineffective for failing to pursue his claim that he should have been permitted to testify before the grand jury and that counsel should have made certain suppression motions with respect to the traffic stop and the search of his vehicle, counsel was relieved and a third assigned counsel made a formal motion to allow defendant to withdraw his guilty plea. County Court denied the motion and sentenced defendant to IV2 to 3 years in prison. Defendant appeals, arguing that he was deprived of the effective assistance of counsel and that his right to make suppression motions survived his guilty plea and waiver.
A challenge to the effectiveness of counsel is precluded by a waiver of appeal except to the extent that it impacts on the voluntariness of the plea (see People v Bethea, 19 AD3d 813, 814 [2005]; People v Bolden, 14 AD3d 934, 935 [2005], lv denied 4 NY3d 796 [2005]). Defendant’s appellate arguments concerning counsel’s alleged failure to secure his right to testify before the grand jury and to make suppression motions do not impact on the issue of the voluntariness of his plea and were waived by the entry of his guilty plea. Moreover, the record could not be clearer that defendant voluntarily, knowingly and intelligently pleaded guilty (see People v Bolden, supra at 935).
Crew III, J.P., Peters, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.