WILLIAMS, ADRIENNE, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
50
KA 09-01875
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ADRIENNE WILLIAMS, DEFENDANT-APPELLANT.
DAVID J. PAJAK, ALDEN, 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 May 27, 2009. The judgment convicted
defendant, upon her plea of guilty, of grand larceny in the fourth
degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
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 AD3d 1456, 1457, lv
denied 14 NY3d 889), 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 NY2d 662, 665; People v Moorer, 63 AD3d 1590, lv denied 13 NY3d
837). 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 AD3d 1409; People v Thomas, 77 AD3d 1325, 1326, lv denied
16 NY3d 800). 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 NY2d at 666). 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 AD3d 1270,
1271-1272), we conclude that it is without merit (see generally People
v Ford, 86 NY2d 397, 404; People v Jermain, 56 AD3d 1165, lv denied 11
-2- 50
KA 09-01875
NY3d 926). Finally, County Court did not err in failing sua sponte to
order a competency hearing (see Bryant, 87 AD3d at 1271-1272; Jermain,
56 AD3d at 1165). 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 AD3d 1286).
Entered: January 31, 2012 Frances E. Cafarell
Clerk of the Court