Opinion
502 KA 16-00950
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Thomas O'CONNOR, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, 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 criminal mischief in the third degree ( Penal Law § 145.05 [2] ). We affirm.
To the extent that defendant challenges the amount of the restitution award and argues that his plea was not voluntary, those contentions, although not precluded by his waiver of the right to appeal (see People v. Rodriguez , 156 A.D.3d 1433, 1434, 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] ; People v. Oehler, 278 A.D.2d 807, 807, 719 N.Y.S.2d 417 [4th Dept. 2000] ), are unpreserved (see People v. Lewis, 114 A.D.3d 1310, 1311, 980 N.Y.S.2d 231 [4th Dept. 2014], lv denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; People v. Wright, 288 A.D.2d 899, 899, 732 N.Y.S.2d 760 [4th Dept. 2001], lv denied 97 N.Y.2d 689, 738 N.Y.S.2d 306, 764 N.E.2d 410 [2001] ). Defendant's further contention that he was denied effective assistance of counsel " ‘does not survive his guilty plea or his waiver of the right to appeal because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance’ " ( People v. Rizek [appeal No. 1], 64 A.D.3d 1180, 1180, 881 N.Y.S.2d 752 [4th Dept. 2009], lv denied 13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101 [2009] ; see People v. Abdulla, 98 A.D.3d 1253, 1254, 951 N.Y.S.2d 286 [4th Dept. 2012], lv denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012] ).
Finally, defendant contends that his waiver of indictment was jurisdictionally defective because it failed to strictly comply with CPL 195.20 by omitting the approximate time and place of the underlying offense. Those omissions were of "non-elemental factual information" ( People v. Thomas , 34 N.Y.3d 545, 569, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ), and thus defendant's contention is forfeited by his plea inasmuch as defendant does not assert that he lacked notice of the precise crime for which he waived prosecution by indictment (see id. ; People v. Ramirez , 180 A.D.3d 1378, 1378-1379, 115 N.Y.S.3d 725 [4th Dept. 2020] ). In fact, defendant was provided with such notice in other accusatory instruments.