Opinion
KA 02-02319.
Decided June 14, 2004.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered January 17, 2003. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (GERALD T. BARTH OF COUNSEL), FOR DEFENDANT-APPELLANT.
LE ROY JENNINGS, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, KEHOE, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of murder in the second degree (Penal Law § 125.25), defendant contends that his waiver of the right to appeal is invalid because it effectively insulated the decisions of Supreme Court from appellate review. It is well settled that waivers of the right to appeal are valid conditions of plea bargains ( see People v. Seaberg, 74 N.Y.2d 1, 5; see also People v. Callahan, 80 N.Y.2d 273, 280) and, in this case, the facts and circumstances surrounding defendant's plea colloquy establish that the waiver was knowingly, intelligently and voluntarily entered ( see People v. Brown, 281 A.D.2d 962, lv denied 96 N.Y.2d 899) . The further contention of defendant that his plea was not knowingly, intelligently or voluntarily entered survives the waiver of the right to appeal ( see Seaberg, 74 N.Y.2d at 10), but defendant failed to preserve that contention for our review ( see People v. Vallejo, 261 A.D.2d 962, lv denied 93 N.Y.2d 1029; People v. DeJesus, 248 A.D.2d 1023, lv denied 92 N.Y.2d 878). Although defendant's initial factual allocution may have negated an essential element of the crime, this case does not fall within the exception to the preservation rule because the court conducted the requisite further inquiry and defendant did not thereafter raise any further objections or move to withdraw his plea or to vacate the judgment of conviction ( see People v. Lopez, 71 N.Y.2d 662, 666; People v. Simmons, 294 A.D.2d 928, lv denied 98 N.Y.2d 702; People v. Castanea, 265 A.D.2d 906).
Even assuming, arguendo, that the waiver of the right to appeal does not foreclose our review of the further contention of defendant that the court failed to exercise its discretion in sentencing him ( cf. Seaberg, 139 A.D.2d 53, 56, affd 74 N.Y.2d 1), we nevertheless conclude that his contention lacks merit ( see generally People v. Farrar, 52 N.Y.2d 302, 306-307). Finally, the contention of defendant that he was denied effective assistance of counsel survives his guilty plea and his waiver of the right to appeal inasmuch as he contends that his plea was infected by the alleged ineffective assistance ( see generally People v. Petgen, 55 N.Y.2d 529, 534-535, rearg denied 57 N.Y.2d 674; People v. Dupont, 292 A.D.2d 872, lv denied 98 N.Y.2d 650). That contention, however, involves matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL article 440 ( see People v. Logan, 2 A.D.3d 1392; People v. Skye, 298 A.D.2d 889, 890).