Opinion
2012-01-31
The PEOPLE of the State of New York, Respondent, v. Adrienne WILLIAMS, Defendant–Appellant.
David J. Pajak, Alden, for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Pajak, Alden, for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon a plea of guilty of two counts of grand larceny in the fourth degree (Penal Law § 155.30[1] ). Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by her waiver of the right to appeal ( see People v. Jorge N.T., 70 A.D.3d 1456, 1457, 894 N.Y.S.2d 625, lv. denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012), the validity of which she does not contest on appeal. In any event, defendant's challenge is also unpreserved for our review inasmuch as she did not move to withdraw her plea or to vacate the judgment of conviction on that ground ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Moorer, 63 A.D.3d 1590, 879 N.Y.S.2d 760, lv. denied 13 N.Y.3d 837, 890 N.Y.S.2d 453, 918 N.E.2d 968). Although the waiver by defendant of the right to appeal does not encompass her contention that the plea was not knowingly, intelligently or voluntarily entered, she failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction on that ground ( see People v. Montanez, 89 A.D.3d 1409, 932 N.Y.S.2d 396; People v. Thomas, 77 A.D.3d 1325, 1326, 908 N.Y.S.2d 284, lv. denied 16 N.Y.3d 800, 919 N.Y.S.2d 517, 944 N.E.2d 1157). This case does not fall within the rare exception to the preservation requirement because the plea colloquy did not “clearly cast [ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea” ( Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). To the extent that defendant's contention that she was denied effective assistance of counsel survives her guilty plea and waiver of the right to appeal ( see People v. Bryant, 87 A.D.3d 1270, 1271–1272, 930 N.Y.S.2d 324), we conclude that it is without merit ( see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265; People v. Jermain, 56 A.D.3d 1165, 867 N.Y.S.2d 326, lv. denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445). Finally, County Court did not err in failing sua sponte to order a competency hearing ( see Bryant, 87 A.D.3d at 1271–1272, 930 N.Y.S.2d 324; Jermain, 56 A.D.3d at 1165, 867 N.Y.S.2d 326). We note, however, that the certificate of conviction incorrectly recites that defendant was convicted of one count of grand larceny in the fourth degree when she in fact was convicted of two such counts. The certificate of conviction must therefore be amended accordingly ( see People v. Saxton, 32 A.D.3d 1286, 821 N.Y.S.2d 353).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.