Opinion
358 KA 16–00932
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Omar I. BELLAMY, Defendant–Appellant. (Appeal No. 1.)
THEODORE W. STENUF, MINOA, FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
THEODORE W. STENUF, MINOA, FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ), coercion in the first degree (§ 135.65[1] ), and attempted coercion in the first degree (§§ 110.00, 135.65[1] ), defendant correctly contends that his waiver of the right to appeal is invalid. Although defendant signed a written waiver of his right to appeal, the colloquy between County Court and defendant was insufficient to ensure that the waiver " ‘was knowingly, voluntarily and intelligently entered’ " ( People v. McCoy , 107 A.D.3d 1454, 1454, 967 N.Y.S.2d 309 [4th Dept. 2013], lv. denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ; see People v. Carno , 101 A.D.3d 1663, 1664, 955 N.Y.S.2d 786 [4th Dept. 2012], lv denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013] ).
While defendant's contention that his plea was coerced by statements made by the court or was otherwise involuntarily entered "survives even a valid waiver of the right to appeal" ( People v. Cooper , 79 A.D.3d 1684, 1684, 917 N.Y.S.2d 450 [4th Dept. 2010], lv denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ; see also People v. Jennings , 8 A.D.3d 1067, 1068, 778 N.Y.S.2d 399 [4th Dept. 2004], lv denied 3 N.Y.3d 676, 784 N.Y.S.2d 14, 817 N.E.2d 832 [2004] ), we conclude that it is unpreserved for our review because he failed to move to withdraw his plea or vacate the judgment of conviction (see People v. Kelly , 145 A.D.3d 1431, 1431, 42 N.Y.S.3d 913 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Robinson , 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529 [4th Dept. 2013], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
Defendant's further contention that he was denied effective assistance of counsel does not survive his plea of guilty because he "failed to demonstrate that ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that he entered the plea because of his attorney['s] allegedly poor performance’ " ( People v. Lugg , 108 A.D.3d 1074, 1075, 968 N.Y.S.2d 785 [4th Dept. 2013] ; see People v. Robinson , 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814 [4th Dept. 2007], lv denied 9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 [2007] ).