Opinion
2016-11424 Ind. No. 15-00356
01-16-2019
The PEOPLE, etc., Respondent, v. Carl SPASOFF, Appellant.
Scott M. Bishop, White Plains, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Steven A. Bender of counsel), for respondent.
Scott M. Bishop, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Steven A. Bender of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered September 14, 2016, convicting him of burglary in the third degree (three counts), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Bryant, 159 A.D.3d 715, 716, 69 N.Y.S.3d 496 ; People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297 ).
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent survives the valid waiver of his right to appeal (see People v. Bryant, 159 A.D.3d at 716, 69 N.Y.S.3d 496 ). However, the defendant failed to preserve this contention for appellate review, 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, 1064, 64 N.Y.S.3d 554 ). In any event, the defendant's contention is without merit.
The defendant's contention that the Justice who presided at the plea and sentencing proceedings should have recused himself, sua sponte, is without merit (see Judiciary Law § 14 ; People v. Harris, 133 A.D.3d 880, 22 N.Y.S.3d 62 ). Moreover, defense counsel's failure to move for recusal did not constitute ineffective assistance of counsel (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's remaining contentions are precluded by the valid waiver of his right to appeal (see People v. Hawthorne, 85 A.D.3d 819, 924 N.Y.S.2d 822 ; People v. Rodriguez, 268 A.D.2d 491, 703 N.Y.S.2d 50 ).
MASTRO, J.P., COHEN, MALTESE and CHRISTOPHER, JJ., concur.