HILL, SHANNON v. PEOPLE v , 939 N.Y.S.2d 919 ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
356
KA 11-00789
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHANNON V. HILL, DEFENDANT-APPELLANT.
KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered April 19, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery in the second
degree.
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 attempted robbery in the second degree
(Penal Law §§ 110.00, 160.10 [1]). We reject defendant’s contention
that his waiver of the right to appeal is invalid. “No particular
litany is required for an effective waiver of the right to appeal”
(People v McDonald, 270 AD2d 955, lv denied 95 NY2d 800; see People v
Moissett, 76 NY2d 909, 910-911). The record establishes that
defendant’s waiver of the right to appeal was knowing, voluntary and
intelligent and was “intended comprehensively to cover all aspects of
the case” (People v Muniz, 91 NY2d 570, 575). Insofar as defendant
contends that the waiver of the right to appeal should not encompass
any issues raised in a CPL article 330 or article 440 motion or in an
application for coram nobis relief (see generally People v Liggins, 56
AD3d 1265), that contention is premature because it seeks merely an
advisory opinion. Defendant’s further contention that he received
ineffective assistance of counsel does not survive the waiver of the
right to appeal or the guilty plea inasmuch as there is no showing
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 Gleen, 73
AD3d 1443, 1444, lv denied 15 NY3d 773 [internal quotation marks
omitted]).
Entered: March 16, 2012 Frances E. Cafarell
Clerk of the Court