Opinion
1217 KA 16–01547
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Victor M. IRIZARRY, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20[1] ). Contrary to defendant's contention, he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Rodriguez, 156 A.D.3d 1433, 1433, 65 N.Y.S.3d 877 [4th Dept. 2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). The waiver "was not rendered invalid based on [Supreme C]ourt's failure to require defendant to articulate the waiver in his own words" ( People v. Scott, 144 A.D.3d 1597, 1597, 40 N.Y.S.3d 689 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] [internal quotation marks omitted] ). The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ).
To the extent that defendant's contention that he received ineffective assistance of counsel survives his plea and valid waiver of the right to appeal (see generally People v. Livermore, 161 A.D.3d 1569, 1570, 76 N.Y.S.3d 732 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ), we conclude that it lacks merit. Defendant "receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Defendant contends that his first counsel was ineffective in filing a motion to suppress that was summarily denied because it did not make sufficient factual allegations (see generally CPL 710.60[1] ; People v. Long, 8 N.Y.3d 1014, 1015, 839 N.Y.S.2d 441, 870 N.E.2d 680 [2007] ). Defendant, however, "has not shown that defense counsel was able to make a more detailed suppression motion, or that such a motion[,] ‘if made, would have been successful,’ and thus he has not ‘establish[ed] that defense counsel was ineffective in failing to make such a motion’ " ( People v. Larkins, 153 A.D.3d 1584, 1586, 62 N.Y.S.3d 648 [4th Dept. 2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ). Defendant contends that his second counsel was ineffective when he stated at sentencing that a prior conviction affected only the minimum sentence that defendant could receive as a second felony offender. Although defendant contends that his second felony offender status had other future implications that defense counsel failed to explain, it is apparent that defense counsel was simply discussing the ramifications of the prior conviction on the sentence in this case, and defendant has not established that counsel was ineffective in doing so (see generally People v. Brunner, 244 A.D.2d 831, 831–832, 666 N.Y.S.2d 247 [3d Dept. 1997] ).