MASSEY, JERRY, PEOPLE v ( 2017 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    403
    KA 16-01415
    PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT.
    V                              MEMORANDUM AND ORDER
    JERRY MASSEY, DEFENDANT-APPELLANT,
    D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Onondaga County Court (Thomas J.
    Miller, J.), rendered June 12, 2015. The judgment convicted
    defendant, upon his plea of guilty, of burglary 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 burglary in the second degree (Penal Law
    § 140.25 [2]). We reject defendant’s contention that his waiver of
    the right to appeal was not knowingly, voluntarily, and intelligently
    entered (see generally People v Lopez, 6 NY3d 248, 256). County Court
    “did not conflate that right with those automatically forfeited by a
    guilty plea” (People v McCrea, 140 AD3d 1655, 1655, lv denied 28 NY3d
    933 [internal quotation marks omitted]), and we conclude that “the
    court engaged defendant ‘in an adequate colloquy to ensure that the
    waiver of the right to appeal was a knowing and voluntary choice’ ”
    (People v Marshall, 144 AD3d 1544, 1545). Defendant’s contention that
    his plea was not knowingly, voluntarily, and intelligently entered
    because he did not recite the elements of the crime and only agreed
    with the court’s description of the incident is actually a challenge
    to the factual sufficiency of the plea allocution, which is foreclosed
    by defendant’s valid waiver of the right to appeal (see People v Dale,
    142 AD3d 1287, 1288, lv denied 28 NY3d 1144).
    Defendant further contends that his guilty plea was not
    knowingly, intelligently, and voluntarily entered and that the court
    abused its discretion in denying his motion to withdraw his plea on
    that ground without first conducting a hearing. Although that
    contention survives defendant’s waiver of the right to appeal (see
    id.), the record establishes that defendant withdrew his motion to
    withdraw his guilty plea and thereby waived any contention with
    -2-                           403
    KA 16-01415
    respect to that motion (see People v Harris, 97 AD3d 1111, 1112, lv
    denied 19 NY3d 1026; People v Gilliam, 96 AD3d 1650, 1651, lv denied
    19 NY3d 1026).
    To the extent that defendant’s contention that he was denied
    effective assistance of counsel survives his valid waiver of the right
    to appeal (see People v Rausch, 126 AD3d 1535, 1535, lv denied 26 NY3d
    1149), we conclude that it lacks merit. Defendant has not shown that
    his motion to withdraw his guilty plea would have been successful if
    not withdrawn (see Harris, 97 AD3d at 1112). Moreover, defendant
    “receive[d] an advantageous plea and nothing in the record casts doubt
    on the apparent effectiveness of [defense] counsel” (Dale, 142 AD3d at
    1290 [internal quotation marks omitted]).
    Finally, the valid waiver of the right to appeal forecloses
    defendant’s challenge to the severity of his sentence (see generally
    Lopez, 6 NY3d at 255-256).
    Entered:   April 28, 2017                      Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 16-01415

Filed Date: 4/28/2017

Precedential Status: Precedential

Modified Date: 4/28/2017