Opinion
2012-06-7
The PEOPLE of the State of New York, Respondent, v. Jose JIMENEZ, also known as Papito, Appellant.
Grasso, Rodriguez & Grasso, Schenectady (Christopher R. Burke of counsel), for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Grasso, Rodriguez & Grasso, Schenectady (Christopher R. Burke of counsel), for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: MERCURE, J.P., ROSE, STEIN, GARRY and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Schenectady County (Coccoma, J.), rendered May 24, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
In full satisfaction of a 22–count indictment, defendant pleaded guilty to one count of criminal possession of a weapon in the second degree, waived his right to appeal and thereafter was sentenced in accordance with the terms of the plea agreement to seven years in prison followed by four years of postrelease supervision. Defendant now appeals, contending only that he was denied the effective assistance of counsel.
We affirm. To the extent that defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea, it survives his otherwise valid waiver of the right to appeal ( see People v. Peterkin, 77 A.D.3d 1017, 1017, 908 N.Y.S.2d 614 [2010];People v. Singh, 73 A.D.3d 1384, 1385, 901 N.Y.S.2d 428 [2010],lv. denied15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 [2010] ). However, as the record before us does not reflect that defendant moved to withdraw his plea or vacate the judgment of conviction, his ineffective assistance of counsel claim is not preserved for our review ( see People v. MacDonald, 77 A.D.3d 989, 990, 908 N.Y.S.2d 464 [2010],lv. denied15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010];People v. Rivera, 78 A.D.3d 1423, 1424, 912 N.Y.S.2d 450 [2010] ). In any event, defendant's present assertion that he did not understand the nature of the proceedings due to his limited understanding of the English language is belied by the record ( see People v. Feliz, 51 A.D.3d 1278, 1279, 858 N.Y.S.2d 472 [2008];People v. Tofaj, 14 A.D.3d 734, 734, 786 N.Y.S.2d 846 [2005];People v. Pagan, 284 A.D.2d 651, 652, 726 N.Y.S.2d 302 [2001],lv. denied96 N.Y.2d 922, 732 N.Y.S.2d 639, 758 N.E.2d 665 [2001] ). Accordingly, the judgment of conviction is affirmed.
ORDERED that the judgment is affirmed.