People v. Lopez, 52 A.D.3d 852 (N.Y. App. Div. 2008). · Go Syfert
People v. Lopez, 52 A.D.3d 852 (N.Y. App. Div. 2008). Cases Citing This Book View Copy Cite
19 citation events (19 in the last 25 years) across 1 distinct court.
Strongest positive: People v. McGrew (nyappdiv, 2014-06-20)
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. McGrew
N.Y. App. Div. · 2014 · confidence medium
Initially, we reject the People’s contention that defendant was required to preserve for our review his challenge to the voluntariness of his waiver of the right to appeal (see People v Lopez, 52 AD3d 852, 853 [2008]; People v Hoover, 37 AD3d 298, 299-300 [2007]).
discussed Cited as authority (rule) People v. McGrew
N.Y. App. Div. · 2014 · confidence medium
Initially, we reject the People’s contention that defendant was required to preserve for our review his challenge to the voluntariness of his waiver of the right to appeal (see People v Lopez, 52 AD3d 852, 853 [2008]; People v Hoover, 37 AD3d 298, 299-300 [2007]).
discussed Cited as authority (rule) People v. Vandemark
N.Y. App. Div. · 2014 · confidence medium
Defendant’s arguments that her plea was not voluntary and that she was not afforded the effective assistance of counsel are not preserved for our review as the record does not reflect that she made an appropriate postallocution motion (see People v White, 104 AD3d 1056, 1056 [2013], lv denied 21 NY3d 1021 [2013]; People v Lopez, 52 AD3d 852, 853 [2008]).
discussed Cited as authority (rule) People v. Vandemark
N.Y. App. Div. · 2014 · confidence medium
Defendant’s arguments that her plea was not voluntary and that she was not afforded the effective assistance of counsel are not preserved for our review as the record does not reflect that she made an appropriate postallocution motion (see People v White, 104 AD3d 1056, 1056 [2013], lv denied 21 NY3d 1021 [2013]; People v Lopez, 52 AD3d 852, 853 [2008]).
discussed Cited as authority (rule) People v. White
N.Y. App. Div. · 2013 · confidence medium
Nonetheless, defendant’s arguments regarding the voluntariness of his plea and the ineffective assistance of his trial counsel have not been properly preserved for our review by a motion to withdraw his plea (see People v Lopez, 52 AD3d 852, 853 [2008]; People v McEnteggart, 26 AD3d 643, 643 [2006], lv denied 7 NY3d 759 [2006]).
discussed Cited as authority (rule) People v. White
N.Y. App. Div. · 2013 · confidence medium
Nonetheless, defendant’s arguments regarding the voluntariness of his plea and the ineffective assistance of his trial counsel have not been properly preserved for our review by a motion to withdraw his plea (see People v Lopez, 52 AD3d 852, 853 [2008]; People v McEnteggart, 26 AD3d 643, 643 [2006], lv denied 7 NY3d 759 [2006]).
discussed Cited as authority (rule) People v. Miller
N.Y. App. Div. · 2011 · confidence medium
Defendant’s challenge to the voluntariness of his plea was not preserved since he did not move to withdraw the plea or vacate the judgment of conviction (see People v Glynn, 73 AD3d 1290, 1291 [2010]; People v Lopez, 52 AD3d 852, 852-853 [2008]).
discussed Cited as authority (rule) People v. Chaney
N.Y. App. Div. · 2010 · confidence medium
Finally, his contention that his sentence was harsh and excessive is precluded by his valid waiver of the right to appeal (see People v Walley, 63 AD3d at 1286; People v Lopez, 52 AD3d 852, 853 [2008]).
discussed Cited as authority (rule) People v. Miller
N.Y. App. Div. · 2010 · confidence medium
Defendant’s assertion that he was denied the effective assistance of counsel is similarly unpreserved by his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Lopez, 52 AD3d 852, 853 [2008]).
discussed Cited as authority (rule) People v. Dickinson
N.Y. App. Div. · 2010 · confidence medium
Defendant’s only contention, that his agreed-upon sentence is harsh and excessive, is precluded by virtue of his valid waiver of appeal (see People v Walley, 63 AD3d 1284, 1286 [2009]; People v Lopez, 52 AD3d 852, 853 [2008]; People v Tedesco, 38 AD3d 1102, 1103 [2007], lv denied 8 NY3d 991 [2007]).
discussed Cited as authority (rule) People v. Walley
N.Y. App. Div. · 2009 · confidence medium
Initially, while defendant claims that his waiver of the right to appeal was not voluntary, the record reveals that the consequences of such a waiver were clearly and adequately explained to defendant by County Court and this explanation was reinforced by the content of a written waiver of appeal form that defendant executed with the assistance of counsel (see People v Lopez, 52 AD3d 852, 853 [2008]; People v Stokely, 49 AD3d 966, 968 [2008]).
discussed Cited as authority (rule) People v. Patnode
N.Y. App. Div. · 2009 · confidence medium
In light of this advantageous plea secured by counsel, defendant was not deprived of meaningful representation (see People v Johnson, 54 AD3d at 1134 ; People v Robles, 53 AD3d at 687 ; People v Lopez, 52 AD3d 852, 853 [2008]).
discussed Cited as authority (rule) People v. Dobrouch
N.Y. App. Div. · 2009 · confidence medium
As for defendant’s challenge to the voluntariness of his plea, although not encompassed by his waiver of appeal, this issue similarly is not preserved for our review in light of defendant’s failure to move to withdraw his plea or vacate the judgment of conviction (see People v Jeske, 55 AD3d at 1058 ; People v Lopez, 52 AD3d 852, 852-853 [2008]).
discussed Cited as authority (rule) People v. Smith (2×)
N.Y. App. Div. · 2008 · confidence medium
Defendant’s contentions that his guilty plea was not voluntary and was factually insufficient and that he was denied the effective assistance of counsel are unpreserved for our review as he failed to move to withdraw the plea or vacate the judgment of conviction (see People v Lopez, 52 AD3d 852, 852-853 [2008]; People v Edwards, 43 AD3d 1227, 1228 [2007], lv denied 9 NY3d 1005 [2007]; People v Myricks, 36 AD3d 1006, 1006 [2007], lv denied 8 NY3d 948 [2007]).
discussed Cited as authority (rule) People v. Nunez
N.Y. App. Div. · 2008 · confidence medium
Although defendant’s challenge to the voluntariness of his plea survives his waiver of the right to appeal, this issue is not preserved for our review inasmuch as defendant did not move to withdraw his plea or vacate the underlying judgment of conviction (see People v Lopez, 52 AD3d 852, 852-853 [2008]).
discussed Cited as authority (rule) People v. Ivory
N.Y. App. Div. · 2008 · confidence medium
Initially, inasmuch as he has failed to move either to withdraw his plea or vacate the judgment of conviction, defendant has not preserved his claim that his plea was not knowingly, voluntarily and intelligently made (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Lopez, 52 AD3d 852, 853 [2008]; People v Jennings, 46 AD3d 1029 , 1029 [2007], lv denied 10 NY3d 766 [2008]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Raul Lopez
Appellate Division of the Supreme Court of the State of New York.
Jun 5, 2008.
52 A.D.3d 852
Spain.
Cited by 17 opinions  |  Published
Spain, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered August 4, 2005, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the fifth degree and criminal possession of a weapon in the third degree.

Defendant was charged in a nine-count indictment with various drug-related offenses, as well as criminal possession of a weapon in the third degree, menacing in the second degree and endangering the welfare of a child (two counts), stemming from an incident wherein defendant threatened his then paramour with a gun in front of their two children. The initial prosecution ended in a mistrial, and defendant thereafter pleaded guilty to criminal possession of a controlled substance in the fifth degree and criminal possession of a weapon in the third degree in full satisfaction of the indictment and an outstanding parole violation. Defendant waived his right to appeal in writing, which he affirmed during the plea colloquy, and was sentenced, as an admitted second felony offender, to the promised prison term of 2 to 4 years.

We affirm. Defendant’s challenge to the voluntariness of his plea, although not encompassed by his waiver of the right to ap[*853] peal, nonetheless is not preserved for our review inasmuch as defendant did not move to withdraw his plea or vacate the underlying judgment of conviction (see People v McEnteggart, 26 AD3d 643 [2006], lv denied 7 NY3d 759 [2006]; People v Robetoy, 21 AD3d 1220 [2005], lv denied 6 NY3d 758 [2005]). The exception to the preservation rule is inapplicable as defendant did not make any statements that were inconsistent with his guilt (see People v Lopez, 71 NY2d 662, 666 [1988]). Defendant also, however, challenges the voluntariness of his appeal waiver, and we no longer apply preservation principles to such a challenge (see People v Lewis, 48 AD3d 880 [2008]). Thus, we will review defendant’s challenge to the plea in the interest of justice in conjunction with our review of the voluntariness of the appeal waiver. Indeed, a review of the record does not support defendant’s claims that his plea and accompanying waiver were coerced or that he was not informed of the sentence he would be facing (see People v Seaberg, 74 NY2d 1, 10-11 [1989]; People v Lewis, 48 AD3d at 881; People v Wyant, 47 AD3d 1068, 1069 [2008]). Defendant unequivocally stated that he had not been threatened or otherwise forced to plead guilty or to waive his right to appeal, and the proposed sentence was plainly and repeatedly disclosed to defendant prior to entering his plea.

As to defendant’s claim that he was denied the effective assistance of counsel, his “failure to move to withdraw the plea or vacate the judgment of conviction serves as a bar to this challenge as well” (People v McEnteggart, 26 AD3d at 643; see People v Parara, 46 AD3d 936, 937 [2007]). In any event, we find this claim to be unpersuasive. Defendant was represented by three attorneys at the plea allocution who, in addition to securing a very advantageous plea for him, extensively addressed his concerns regarding his related parole violation and his desire to visit with his children while in prison. Defendant not only indicated that he was satisfied with the representation provided but expressed his appreciation for “all the work” counsel had done for him. Simply put, there is nothing in the record to suggest that counsels’ representation was less than meaningful (see People v Parara, 46 AD3d at 937). Finally, defendant’s challenge to the agreed-upon sentence is precluded in light of his valid waiver of the right to appeal (see People v Tedesco, 38 AD3d 1102, 1103 [2007], lv denied 8 NY3d 991 [2007]).

Mercure, J.P, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.