Opinion
2018–13100 Ind. No. 181/17
04-27-2022
The PEOPLE, etc., respondent, v. Michael CUMMINGS, appellant.
Salvatore C. Adamo, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Bridget Rahilly Steller of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Bridget Rahilly Steller of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, WILLIAM G. FORD, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered October 1, 2018, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's plea of guilty included a waiver of his right to appeal. Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Cuellar, 174 A.D.3d 733, 105 N.Y.S.3d 102 ; People v. Batista, 167 A.D.3d 69, 86 N.Y.S.3d 492 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contentions that he was improperly denied participation in a judicial diversion program (see People v. Pinckney, 186 A.D.3d 507, 126 N.Y.S.3d 406 ; People v. Sabater, 144 A.D.3d 950, 40 N.Y.S.3d 780 ), and that his sentence was harsh and excessive (see People v. Lopez, 199 A.D.3d 704, 153 N.Y.S.3d 877 ; People v. Leasure, 177 A.D.3d 770, 114 N.Y.S.3d 367 ). The defendant's valid waiver of his right to appeal also precludes appellate review of his contention that he was deprived of the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Leasure, 177 A.D.3d 770, 114 N.Y.S.3d 367 ). To the extent that the defendant's ineffective assistance of counsel claim survives his valid waiver of the right to appeal, the claim is without merit (see People v. Morrison, 201 A.D.3d 953, 157 N.Y.S.3d 787 ).
IANNACCI, J.P., CHAMBERS, ROMAN and FORD, JJ., concur.