People v. Cross

Jul 5, 2007
Versions:42 A.D.3d 586
838 N.Y.S.2d 268

Rose, J. Appeal from a judgment of the County Court of Madison County (McDermott, J.), rendered January 3, 2005, convicting defendant upon his plea of guilty of two counts of the crime of sodomy in the third degree.

Defendant waived indictment by a grand jury and agreed to be prosecuted by a superior court information charging him with two counts of sodomy in the third degree. Pursuant to a negotiated plea bargain, defendant thereafter pleaded guilty to both counts, executed a written waiver of appeal and was sentenced to consecutive terms of imprisonment of 1 to 3 years. Defendant now appeals.

Contrary to defendant’s initial contention, we conclude that he validly waived his right to appeal inasmuch as he executed a written appeal waiver which indicated that he had discussed his appellate options with his attorney and was waiving his right to appeal knowingly and voluntarily (see People v Fludd, 33 AD3d 1124, 1125 [2006]). Given that, defendant is precluded from advancing his further argument that his sentence was harsh and excessive (see People v Tedesco, 38 AD3d 1102, 1103 [2007]). As for defendant’s assertion that his sentences should have been ordered to run concurrently, a review of the plea minutes satisfies us that his sexual abuse of the victim was perpetrated through two separate and distinct acts occurring on separate occasions in August 1999, thus warranting the imposition of consecutive sentences (see Penal Law § 70.25 [2]; People v Harrington, 3 AD3d 737, 739 [2004]). Finally, with respect to defendant’s claims of ineffective assistance of counsel, we find that defendant received an advantageous plea to the extent that it reduced his sentence exposure and, aside from speculation, nothing in the record casts doubt upon his counsel’s effectiveness (see People v Williams, 35 AD3d 971, 973 [2006]).

Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur.

Ordered that the judgment is affirmed.