People v. Ashley

• Decision Date: 15 March 2010
• Citation: 2010 N.Y. Slip Op. 01998,896 N.Y.S.2d 520,71 A.D.3d 1286
• Parties: The PEOPLE of the State of New York, Respondent,v.Patrick R. ASHLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 1286
896 N.Y.S.2d 520
2010 N.Y. Slip Op. 01998

The PEOPLE of the State of New York, Respondent,
v.
Patrick R. ASHLEY, Appellant.

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

March 15, 2010.

[896 N.Y.S.2d 520]

John A. Cirando, Syracuse, for appellant.Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), for respondent.Before: MERCURE, J.P., LAHTINEN, McCARTHY and GARRY, JJ.

[896 N.Y.S.2d 521]

McCARTHY, J.

[71 A.D.3d 1286] Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered February 28, 2008, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree.

Approximately two months after being paroled on his 1999 robbery convictions, defendant attempted to rob a grocery store and shot the 71–year–old proprietor. Defendant subsequently pleaded guilty to attempted robbery in the first degree, waived his right to appeal and was sentenced to nine years of imprisonment and five years of postrelease supervision in accordance with a plea agreement. Defendant now appeals.

Defendant was represented by counsel and signed a written waiver as a condition of the plea arrangement expressly waiving any right to appeal except with respect to his constitutional right to a speedy trial, the legality of his sentence, his competency to stand trial and the voluntariness of the waiver. During the plea proceedings, County Court advised defendant of his rights with respect to trial and the scope of the appeal waiver. Defendant acknowledged his understanding of these rights and waiver thereof. Prior to sentencing, the court again advised defendant that he was waiving his right to appeal except as to certain matters. Defendant reviewed and acknowledged his written waiver without objection. Consequently, defendant's waiver of appeal was valid and his challenge to the severity of his sentence is therefore precluded ( see People v. Lopez, 6 N.Y.3d 248, 255–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).

[71 A.D.3d 1287] Defendant's challenge to the facial sufficiency of his plea allocution is also precluded by his appeal waiver, although his challenge to the voluntariness of his plea is not ( see People v. Nesbitt, 23 A.D.3d 836, 837, 805 N.Y.S.2d 139 [2005], lv. denied 6 N.Y.3d 816, 812 N.Y.S.2d 455, 845 N.E.2d 1286 [2006] ). We find the voluntariness of defendant's plea is not undermined by defendant's mere assertion, more than three months after the plea, of a history of mental illness and attempted suicide prior to his plea ( see People v. Kennedy, 34 A.D.2d 856, 310 N.Y.S.2d 646 [1970]; compare People v. Hall, 168 A.D.2d 310, 562 N.Y.S.2d 641 [1990], lv. denied 77 N.Y.2d 906, 569...