Opinion
714 KA 17–00504
06-28-2019
The PEOPLE of the State of New York, Respondent, v. Phillip G. YATES, Defendant–Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT–APPELLANT. MARK S. SINKIEWICZ, ACTING DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT–APPELLANT.
MARK S. SINKIEWICZ, ACTING DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the fifth degree ( Penal Law § 220.31 ). Contrary to defendant's contention, we conclude that his waiver of the right to appeal was valid (see People v. Smith, 164 A.D.3d 1621, 1621–1622, 84 N.Y.S.3d 287 [4th Dept. 2018], lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 608, 121 N.E.3d 235 [2019] ). Here, County Court engaged defendant in a sufficient colloquy to ascertain that defendant's waiver of the right to appeal was made knowingly, intelligently, and voluntarily (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
We further conclude that, "[a]lthough a valid waiver of the right to appeal would not preclude defendant's challenge to the voluntariness of his plea, defendant failed to preserve that challenge for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction" ( People v. Mobayed, 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; see People v. Cruz, 81 A.D.3d 1300, 1301, 916 N.Y.S.2d 555 [4th Dept. 2011], lv denied 17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096 [2011] ). Contrary to defendant's contention, this is not the "rare case in which the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon [his] guilt or otherwise calls into question the voluntariness of the plea," and thus the exception to the preservation rule stated in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988) does not apply ( Mobayed, 158 A.D.3d at 1222, 70 N.Y.S.3d 267 [internal quotation marks omitted] ). Insofar as defendant also contests the factual sufficiency of the plea colloquy, that contention is encompassed by his valid waiver of the right to appeal (see People v. Oswold, 151 A.D.3d 1756, 1756, 55 N.Y.S.3d 568 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ).
Defendant's contention that he was denied effective assistance of counsel survives his guilty plea only insofar as he "contends that his plea was infected by the allegedly ineffective assistance and that he entered the plea because of his attorney's allegedly poor performance" ( People v. Ware, 159 A.D.3d 1401, 1402, 72 N.Y.S.3d 676 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] [internal quotation marks omitted]; see People v. Bethune, 21 A.D.3d 1316, 1316, 801 N.Y.S.2d 196 [4th Dept. 2005], lv denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 [2005] ). Defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" ( People v. Hernandez, 22 N.Y.3d 972, 975, 978 N.Y.S.2d 711, 1 N.E.3d 785 [2013], cert denied 572 U.S. 1070, 134 S.Ct. 1900, 188 L.Ed.2d 930 [2014] [internal quotation marks omitted] ). Here, defendant failed to allege that he would have proceeded to trial absent counsel's alleged deficiencies and does not explain how those alleged deficiencies impacted his decision to enter a guilty plea. Thus, his contention that he did not receive effective assistance of counsel does not survive his guilty plea (see Ware, 159 A.D.3d at 1402, 72 N.Y.S.3d 676 ).
Finally, we note that the certificate of conviction erroneously reflects that defendant was convicted of criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06[1] ) and, as defendant requests, it should be amended to reflect that he was convicted of criminal sale of a controlled substance in the fifth degree ( § 220.31 ; see generally People v. Armendariz, 156 A.D.3d 1383, 1384, 65 N.Y.S.3d 864 [4th Dept. 2017], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018] ; People v. Maloney, 140 A.D.3d 1782, 1783, 32 N.Y.S.3d 410 [4th Dept. 2016] ).