People v. Boyce

• Decision Date: 31 December 2003
• Docket Number: 13623.
• Citation: 2 A.D.3d 1208,2003 NY Slip Op 19900,769 N.Y.S.2d 659
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JESSE D. BOYCE, Appellant.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 1208

769 N.Y.S.2d 659

2003 NY Slip Op 19900

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JESSE D. BOYCE, Appellant.

13623.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 31, 2003.

Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered July 12, 2001, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

Spain, J.

Pursuant to a negotiated agreement, defendant pleaded guilty to attempted burglary in the second degree in satisfaction of a four-count indictment stemming from his conduct on July 17, 2000 in going to the apartment of a former girlfriend, assaulting her, then entering her apartment and removing certain items. As part of the plea, defendant unqualifiedly waived his right to appeal and was later sentenced to a prison term of 2½ years. Defendant now appeals contending, among other things, that his plea was involuntary and the sentence was harsh and excessive. We affirm.

At the outset, defendant's various challenges to the voluntariness of his plea are not preserved for our review given his failure to move to withdraw his plea or to vacate the judgment of conviction (see People v Barclay, 1 AD3d 705, 705-706 [2003]). Further, defendant's attempt to challenge an adverse aspect of County Court's suppression ruling, which otherwise suppressed his statement to police, is foreclosed by his general appeal waiver, which specifically included the withdrawal of all motions, as part of the negotiated plea (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Collier, 232 AD2d 878, 878 [1996], lv denied 89 NY2d 863 [1996]; People v Jandrew, 101 AD2d 90, 91-92 [1984]). Also unavailing is his claim that the court imposed a three-year period of postrelease supervision without sufficiently answering his questions (see Penal Law § 70.45). In fact, the court fully advised defendant of this condition and recessed to make a phone call to the parole board to obtain an answer to defendant's question (cf. People v Goss, 286 AD2d 180 [2001]), and the court's inability to answer a hypothetical question thereafter posed by defendant did not render his plea involuntary in any respect.

Likewise, defendant's contention that County Court misadvised him during the plea about whether he would face additional time for a pending misdemeanor charge in another county is meritless. As the People made clear, that charge was not covered by the plea agreement and the court openly stated that it did not know what the other District Attorney would do. With regard to defendant's contentions that he received ineffective assistance of counsel, they are unrelated to the voluntariness of his plea and are, thereby, foreclosed by his voluntary waiver of appeal (see People v Porter, 300 AD2d 698, 699 [2002], lv denied 100 NY2d 541 [2003]; cf. People v Seaberg, 74 NY2d 1, 10 [1989]).

Moreover, defendant's contention that he did not understand the ramifications of waiving his right to appeal does not withstand scrutiny. The transcript of the plea colloquy reflects that prior to accepting defendant's plea, County Court fully apprised him of the consequences of pleading guilty and the rights he was foregoing, including...