Opinion
KA 01-01562
October 1, 2002.
Appeal from a judgment of Jefferson County Court (Martusewicz, J.), entered June 11, 2001, convicting defendant upon his plea of guilty of robbery in the third degree.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (ANA PEYA-WALLACE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HAYES, HURLBUTT, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the third degree (Penal Law § 160.05). The record establishes that defendant voluntarily, knowingly, and intelligently waived his right to appeal, and that waiver encompasses his present challenges to the factual sufficiency of the plea allocution ( see People v. Vallejo, 261 A.D.2d 962, 962, lv denied 93 N.Y.2d 1029; see also People v. Diola, 239 A.D.2d 961, lv denied 91 N.Y.2d 872). To the extent that defendant contends that his plea was not voluntarily, knowingly, and intelligently entered, that contention survives his waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10), but we conclude that it is without merit. "The record shows that defendant was advised of his rights and that his Alford plea ( see, North Carolina v. Alford, 400 U.S. 25) was knowingly, intelligently and voluntarily entered with a full understanding of its consequences" ( People v. Alfieri, 201 A.D.2d 935, 935, lv denied 83 N.Y.2d 908; see People v. Cooley, 265 A.D.2d 922; see also People v. Figueroa-Guzman, 273 A.D.2d 912). We reject the contention of defendant that the People did not set forth the specific evidence against him and thus that his plea was not knowingly and intelligently entered. "[T]he prosecutor placed on the record the proof that the People intended to offer at trial and that elaboration contained strong evidence of defendant's guilt" ( Alfieri, 201 A.D.2d at 935-936; see People v. Sanford, 231 A.D.2d 900, lv denied 89 N.Y.2d 929; People v. Peralta, 231 A.D.2d 958, lv denied 90 N.Y.2d 909).
Defendant further contends that County Court erred in denying his motion to withdraw his guilty plea without affording him a reasonable opportunity to state the grounds for the motion. We disagree. Defense counsel set forth the grounds for the motion and the court then allowed defendant to present any further comments or arguments ( see People v. Tinsley, 35 N.Y.2d 926, 927). The court did not abuse its discretion in denying the motion ( see People v. French, 292 A.D.2d 813, 814; People v. Chrysler, 241 A.D.2d 975, lv denied 90 N.Y.2d 1010). We reject the further contention of defendant that he was denied effective assistance of counsel because defense counsel withdrew all pending motions when defendant pleaded guilty ( see generally People v. Mojica, 291 A.D.2d 833, lv denied 98 N.Y.2d 653).
Defendant failed to preserve for our review his contention that the court erred in its determination of the amount of restitution ( see People v. Horne, 97 N.Y.2d 404, 414 n 3; People v. McCorkle, 298 A.D.2d 484 [Oct. 1, 2002]). Finally, the waiver by defendant of the right to appeal encompasses his contention concerning the severity of the sentence ( see People v. Lococo, 92 N.Y.2d 825, 827; People v. Hidalgo, 91 N.Y.2d 733, 737), and, in any event, we conclude that the bargained-for sentence is not unduly harsh or severe.