Opinion
384 KA 19–00991
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Shannon E. TERWILLIGER, Defendant–Appellant.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25[2] ). Defendant's contention that County Court's Molineux ruling constituted an abuse of discretion is forfeited by her guilty plea (see People v. Sapp, 147 A.D.3d 1532, 1534, 47 N.Y.S.3d 565 [4th Dept. 2017], lv. denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ). Contrary to defendant's further contention, she validly waived her right to appeal (see generally People v. Thomas, 34 N.Y.3d 545, 560-61, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *4 [2019] ). Defendant's valid waiver of the right to appeal forecloses our review of her challenges to the court's denial of her request for a Wade /Rodriguez hearing (see People v. Rohadfox, 175 A.D.3d 1813, 1814, 109 N.Y.S.3d 537 [4th Dept. 2019], lv. denied 34 N.Y.3d 1019, 114 N.Y.S.3d 743, 138 N.E.3d 472 [2019] ), and to the severity of her sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
Although defendant's contention that her guilty plea was not voluntarily, knowingly, and intelligently entered survives the waiver of the right to appeal (see People v. McKay, 5 A.D.3d 1040, 1041, 773 N.Y.S.2d 923 [4th Dept. 2004], lv . denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 [2004] ), that contention is unpreserved for our review because defendant failed to move to withdraw her guilty plea or to vacate the judgment of conviction (see People v. Jimenez, 177 A.D.3d 1326, 1326, 110 N.Y.S.3d 380 [4th Dept. 2019], lv . denied 34 N.Y.3d 1078, 116 N.Y.S.3d 179, 139 N.E.3d 837 [2019] ; People v. Reddick, 175 A.D.3d 1788, 1789, 109 N.Y.S.3d 781 [4th Dept. 2019], lv . denied 34 N.Y.3d 1162, 120 N.Y.S.3d 237, 142 N.E.3d 1139, [2020] ), and "nothing on the face of the record calls into question the voluntariness of the plea or casts significant doubt upon defendant's guilt" ( People v. Karlsen, 147 A.D.3d 1466, 1468, 47 N.Y.S.3d 584 [4th Dept 2017], lv. denied 29 N.Y.3d 1082, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ; see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Defendant's further contention that she was denied effective assistance of counsel does not survive her plea of guilty or her waiver of the right to appeal because she "failed to demonstrate that ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that [s]he entered the plea because of [her] attorney['s] allegedly poor performance’ " ( People v. Lugg, 108 A.D.3d 1074, 1075, 968 N.Y.S.2d 785 [4th Dept. 2013] ; see People v. Babagana, 176 A.D.3d 1627, 1627, 107 N.Y.S.3d 915 [4th Dept. 2019], lv . denied 34 N.Y.3d 1075, 116 N.Y.S.3d 143, 139 N.E.3d 801 [2019] ).