People v. Brown

Oct 2, 2009
Versions:66 A.D.3d 1385
885 N.Y.S.2d 660

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]). Contrary to the contentions of defendant, we conclude that his waiver of the right to appeal is valid (see People v Lopez, 6 NY3d 248, 256 [2006]), and that it is not void as against public policy (see People v Carmody, 53 AD3d 1048 [2008], lv denied 11 NY3d 830 [2008]). The further contention of defendant that his plea was not knowing, voluntary, or intelligent because he gave only “monosyllabic responses” to County Court‘s questions in effect constitutes a challenge to the factual sufficiency of the plea allocution and thus is encompassed by the valid waiver of the right to appeal (see People v Bailey, 49 AD3d 1258, 1259 [2008], lv denied 10 NY3d 932 [2008]; People v Cole, 42 AD3d 963 [2007], lv denied 9 NY3d 990 [2007]). Although the further ground for the contention of defendant that his plea was not knowingly, voluntarily, and intelligently entered “survives his valid waiver of the right to appeal . . . , defendant did not move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve his contention for our review” (People v Dozier, 59 AD3d 987, 987 [2009], lv denied 12 NY3d 815 [2009]; see People v Neal, 56 AD3d 1211 [2008], lv denied 12 NY3d 761 [2009]). This case does not fall within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988]; Neal, 56 AD3d 1211 [2008]). To the extent that the contention of defendant that he was denied effective assistance of counsel survives his guilty plea and waiver of the right to appeal (see People v Gimenez, 59 AD3d 1088 [2009], lv denied 12 NY3d 816 [2009]; People v Bethune, 21 AD3d 1316 [2005], lv denied 6 NY3d 752 [2005]), we reject that contention (see generally People v Ford, 86 NY2d 397, 404 [1995]).