Opinion
2015-03-27
The PEOPLE of the State of New York, Respondent, v. Leon R. WOODS, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Leon R. Woods, Defendant–Appellant Pro Se.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Leon R. Woods, Defendant–Appellant Pro Se.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
PRESENT: SMITH, J.P., LINDLEY, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10[1] ), defendant contends in his pro se supplemental brief that his waiver of the right to appeal is not valid. We reject that contention. Defendant's “ responses during the plea colloquy and his execution of a written waiver of the right to appeal establish that he intelligently, knowingly and voluntarily waived his right to appeal” (People v. Rumsey, 105 A.D.3d 1448, 1449, 963 N.Y.S.2d 909, lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397). Contrary to defendant's contention, the record establishes that he “ ‘understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v. Jones, 96 A.D.3d 1637, 1637, 946 N.Y.S.2d 797, lv. denied19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Defendant's contention in his main brief that his plea was not knowingly, voluntarily and intelligently entered survives his valid waiver of the right to appeal ( see People v. Theall, 109 A.D.3d 1107, 1107–1108, 971 N.Y.S.2d 753, lv. denied22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131), but defendant failed to preserve that contention for our review by moving to withdraw his plea or to vacate the judgment of conviction ( see People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438, lv. denied21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278; People v. McKeon, 78 A.D.3d 1617, 1618, 910 N.Y.S.2d 623, lv. denied16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155). Contrary to defendant's contention, “[t]his is not one of those rare cases ‘where the defendant's recitation of the facts underlying the crime [ ] pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea[ ]’ to obviate the preservation requirement” (People v. Rodriguez, 17 A.D.3d 1127, 1129, 794 N.Y.S.2d 543, lv. denied5 N.Y.3d 768, 801 N.Y.S.2d 263, 834 N.E.2d 1273, quoting People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). “Although the initial statements of defendant during the factual allocution may have negated the essential element of his intent to cause [serious physical injury], his further statements removed any doubt regarding that intent” ( People v. Trinidad, 23 A.D.3d 1060, 1061, 804 N.Y.S.2d 876, lv. denied6 N.Y.3d 760, 810 N.Y.S.2d 428, 843 N.E.2d 1168; see Theall, 109 A.D.3d at 1108, 971 N.Y.S.2d 753).
Defendant's further contention in his pro se supplemental brief that he was denied effective assistance of counsel “does not survive the plea or the waiver by defendant of the right to appeal because defendant failed to demonstrate 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. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794, lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915). Finally, although defendant's valid waiver of the right to appeal does not encompass his challenge in his pro se supplemental brief to the severity of his sentence inasmuch as County Court “failed to advise defendant of the potential periods of incarceration or the potential maximum term of incarceration” (People v. Kelly, 96 A.D.3d 1700, 1700, 946 N.Y.S.2d 822), that challenge lacks merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.