Opinion
2013–05077 Ind. No. 98/12
11-21-2018
The PEOPLE, etc., Respondent, v. Andrew KOVALSKY, Appellant.
Yasmin Daley Duncan, Brooklyn, NY, for appellant and appellant pro se. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Yasmin Daley Duncan, Brooklyn, NY, for appellant and appellant pro se.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant 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 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that his pre-plea request to substitute new counsel was improperly denied (see People v. Coleman, 164 A.D.3d 518, 77 N.Y.S.3d 884 ; People v. Harris, 153 A.D.3d 552, 552–553, 56 N.Y.S.3d 877 ; People v. Weston, 145 A.D.3d 746, 747, 43 N.Y.S.3d 413 ).
Although the defendant's contention regarding the voluntariness of his plea survives his valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Lujan, 114 A.D.3d 963, 964, 980 N.Y.S.2d 815 ), the defendant failed to preserve for appellate review his contention that his plea of guilty was not knowing, voluntary, or intelligent, since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v. McClenic, 155 A.D.3d 1064, 64 N.Y.S.3d 554 ; People v. Coachman, 154 A.D.3d 957, 63 N.Y.S.3d 94 ). The narrow exception to the preservation rule is inapplicable in this case, as the defendant's recitation of the facts underlying his plea to the charged crime did not clearly cast significant doubt upon his guilt, negate an essential element of the crime, or otherwise call into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Fuentes, 124 A.D.3d 677, 678, 1 N.Y.S.3d 305 ). In any event, the record reflects that the defendant's plea of guilty was knowing, voluntary, and intelligent (see People v. Seeber, 4 N.Y.3d 780, 780–781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contention, raised in his pro se supplemental brief, 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. Rodriguez , 144 A.D.3d 950, 950, 40 N.Y.S.3d 786 ; People v. Moore , 140 A.D.3d 1091, 34 N.Y.S.3d 147 ; People v. Upson , 134 A.D.3d 1058, 21 N.Y.S.3d 688 ). To the extent that the defendant's ineffective assistance of counsel claim survives his valid waiver of the right to appeal, his contention is without merit (see People v. Rodriguez , 144 A.D.3d at 950, 40 N.Y.S.3d 786 ; People v. Moore , 140 A.D.3d at 1092, 34 N.Y.S.3d 147 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contentions that certain counts in the indictment were multiplicitous (see People v. Slingerland, 101 A.D.3d 1265, 955 N.Y.S.2d 690 ), and that the sentence imposed was excessive (see People v. Jiminez, 164 A.D.3d 914, 79 N.Y.S.3d 924 ).
The defendant's remaining contentions raised in his pro se supplemental brief are without merit.
LEVENTHAL, J.P., CHAMBERS, SGROI and CONNOLLY, JJ., concur.