People v. Arney

• Decision Date: 08 August 2014
• Citation: 120 A.D.3d 949,2014 N.Y. Slip Op. 05734,990 N.Y.S.2d 752
• Parties: The PEOPLE of the State of New York, Respondent, v. Scott ARNEY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 949
990 N.Y.S.2d 752
2014 N.Y. Slip Op. 05734

The PEOPLE of the State of New York, Respondent,
v.
Scott ARNEY, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Aug. 8, 2014.

[990 N.Y.S.2d 753]

Linda M. Campbell, Syracuse, for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY AND WHALEN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a plea of guilty of assault in the second degree (Penal Law § 120.05[1] ). We reject defendant's contention that his waiver of the right to appeal was invalid. “County Court's plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Buske, 87 A.D.3d 1354, 1354, 930 N.Y.S.2d 155,lv. denied18 N.Y.3d 882, 939 N.Y.S.2d 751, 963 N.E.2d 128 [internal quotation marks omitted] ). Defendant's further contention that “the court erred in failing sua sponte to inquire into his state of intoxication at the time of the commission of the crime is actually a challenge to the factual sufficiency of the plea allocution, and it is well settled that defendant's valid waiver of the right to appeal encompasses that challenge” ( People v. Zimmerman, 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427,lv. denied20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334). In any event, “[t]he issue of intoxication was raised by [defendant] for the first time in the presentence interview, and thus the court had no duty to make further inquiry at the time of the plea based on information

[990 N.Y.S.2d 754]

in the presentence report” ( People v. Jordan, 292 A.D.2d 860, 861, 739 N.Y.S.2d 511,lv. denied98 N.Y.2d 698, 747 N.Y.S.2d 417, 776 N.E.2d 6;see People v. Espinal, 99 A.D.3d 435, 435, 951 N.Y.S.2d 525,lv. denied20 N.Y.3d 986, 958 N.Y.S.2d 701, 982 N.E.2d 621). Because nothing in defendant's plea allocution cast doubt on the voluntariness of his plea and inasmuch as defendant made no motion to withdraw his plea, defendant's contention is unpreserved for our review ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5).

Although defendant's further contention that he is innocent survives his valid waiver of the right to appeal ( see People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623;see also People v. Franco, 104 A.D.3d 790, 790, 960 N.Y.S.2d 507;People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794,lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915), that contention is also unpreserved for our review ( see Lewandowski, 82 A.D.3d at 1602, 919 N.Y.S.2d 623). In any event, defendant's assertion of innocence is conclusory and belied by his statements during the plea colloquy ( see id.;Wright, 66 A.D.3d at 1334, 885 N.Y.S.2d 794).

We further conclude that the contention of defendant that he was denied effective assistance of counsel “does not survive the plea or his valid waiver of the right to appeal because defendant ‘failed to demonstrate 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’ ” ( Lewandowski, 82...