People v. Cohen

• Decision Date: 21 November 2012
• Citation: 2012 N.Y. Slip Op. 08028,953 N.Y.S.2d 900,100 A.D.3d 919
• Parties: The PEOPLE, etc., respondent, v. Anwar COHEN, appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 919

953 N.Y.S.2d 900

2012 N.Y. Slip Op. 08028

The PEOPLE, etc., respondent,

v.Anwar COHEN, appellant.

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

Nov. 21, 2012.

Matthew Muraskin, Port Jefferson, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered April 4, 2011, convicting him of burglary in the first degree and robbery in the first degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim with respect to the voluntariness of the plea survives even a valid waiver of the right to appeal ( see People v. McLean, 77 A.D.3d 684, 684, 908 N.Y.S.2d 352;People v. Rodriguez–Ovalles, 74 A.D.3d 1368, 1368, 903 N.Y.S.2d 258;People v. Elcine, 43 A.D.3d 1176, 1177, 843 N.Y.S.2d 343;see also People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022;People v. Adams, 67 A.D.3d 819, 819, 887 N.Y.S.2d 859;People v. Morrow, 48 A.D.3d 704, 705, 852 N.Y.S.2d 327;People v. Nicholas, 8 A.D.3d 300, 300, 777 N.Y.S.2d 321;People v. Hong Ping Lou, 299 A.D.2d 559, 560, 751 N.Y.S.2d 44). However, the defendant's contention, in effect, that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence ( seeCPL 220.60[3], 470.05[2]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668;People v. Andrea, 98 A.D.3d 627, 627, 949 N.Y.S.2d 654;People v. Hayes, 91 A.D.3d 792, 792, 936 N.Y.S.2d 902;People v. Kulmatycski, 83 A.D.3d 734, 734, 920 N.Y.S.2d 670;People v. Rusielewicz, 45 A.D.3d 704, 704, 846 N.Y.S.2d 243). In any event, contrary to the defendant's contention, the record establishes that the defendant's plea was knowingly, voluntarily, and intelligently entered ( see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Palmer, 95 A.D.3d 1141, 1142, 943 N.Y.S.2d 778;People v. Appling, 94 A.D.3d 1135, 1136, 942 N.Y.S.2d 617;People v. Cancel, 92 A.D.3d 891, 891, 938 N.Y.S.2d 814;People v. Ortiz, 89 A.D.3d 1113, 1113, 933 N.Y.S.2d 609).

The defendant's contention that he was deprived of the effectiveassistance of counsel is based on matter dehors the record and, therefore, cannot be reviewed on direct appeal ( see People v. Cancel, 92 A.D.3d at 891, 938 N.Y.S.2d 814;People v. Bivens, 88 A.D.3d 808, 809, 930 N.Y.S.2d 910;People v. Romero, 82 A.D.3d 1013, 1013, 918 N.Y.S.2d 730;People v. Burgess, 81 A.D.3d 969, 970, 917 N.Y.S.2d 881;People v. Anthoulis, 78 A.D.3d 854, 854–855, 910 N.Y.S.2d 370).

SKELOS, J.P., ANGIOLILLO, DICKERSON and HALL, JJ., concur.