Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Daniel S. ROUNDS, Defendant–Appellant.
John J. Raspante, Utica, for Defendant–Appellant. Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando Of Counsel), for Respondent.
John J. Raspante, Utica, for Defendant–Appellant.
Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando Of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree (Penal Law § 130.50[3] ). We note at the outset that the notice of appeal contains an incorrect description of the court from which the appeal is taken. The notice of appeal is otherwise accurate, however, and “we exercise our discretion, in the interest of justice, and treat the notice of appeal as valid” (People v. Mitchell, 93 A.D.3d 1173, 1173, 940 N.Y.S.2d 393, lv. denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 ). We agree with defendant that his waiver of the right to appeal was not valid. During the plea colloquy, County Court “conflated the appeal waiver with the rights automatically waived by the guilty plea” (People v. Martin, 88 A.D.3d 473, 474, 931 N.Y.S.2d 7, affd. 19 N.Y.3d 914, 950 N.Y.S.2d 84, 973 N.E.2d 179 ; see People v. Harris, 125 A.D.3d 1506, 1506, 2 N.Y.S.3d 309, lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 ). Consequently, “ ‘the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v. Cooper, 136 A.D.3d 1397, 1398, 24 N.Y.S.3d 481 ; see Martin, 88 A.D.3d at 474, 931 N.Y.S.2d 7 ). Nevertheless, we affirm.
Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, and he thus failed to preserve for our review his contention that he was coerced into pleading guilty based on statements made by the court and counsel prior to the plea (see People v. Boyd, 101 A.D.3d 1683, 1683, 956 N.Y.S.2d 382 ; People v. Lando, 61 A.D.3d 1389, 1389, 876 N.Y.S.2d 923, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 ). In any event, “defendant's contention is belied by the record inasmuch as, during the plea proceeding, defendant denied that he had been threatened or otherwise influenced against his will into pleading guilty” (People v. Hall, 82 A.D.3d 1619, 1619–1620, 919 N.Y.S.2d 638, lv. denied 16 N.Y.3d 895, 926 N.Y.S.2d 31, 949 N.E.2d 979 ).
Defendant's contention that he was denied effective assistance of counsel survives his guilty plea to the extent that he contends that the plea was infected by the alleged ineffective assistance (see People v. Gimenez, 59 A.D.3d 1088, 1089, 872 N.Y.S.2d 625, lv. denied 12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932 ). After a review of the record, however, we reject that contention (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of [defense] counsel” (Ford, 86 N.Y.2d at 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ; see People v. Bonavito, 121 A.D.3d 1499, 1500, 992 N.Y.S.2d 830, lv. denied 25 N.Y.3d 988, 10 N.Y.S.3d 531, 32 N.E.3d 968 ; People v. Nieves, 299 A.D.2d 888, 889, 750 N.Y.S.2d 677, lv. denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286 ), which is the case here. Indeed, we note that “the record reflects that defendant expressed satisfaction with defense counsel's services” (People v. Martin, 55 A.D.3d 1236, 1237–1238, 864 N.Y.S.2d 582, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446, reconsideration denied 12 N.Y.3d 855, 881 N.Y.S.2d 667, 909 N.E.2d 590 ).
Finally, the sentence, including the period of postrelease supervision, is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.