People v. Dancy

• Decision Date: 13 December 2017
• Docket Number: 2016–08259,Ind.No. 30/15
• Citation: 156 A.D.3d 717,66 N.Y.S.3d 530
• Parties: The PEOPLE, etc., respondent, v. Jamir DANCY, appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 717

66 N.Y.S.3d 530

The PEOPLE, etc., respondent,

v.Jamir DANCY, appellant.

2016–08259

Ind.No. 30/15

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

Submitted November 15, 2017

December 13, 2017

Salvatore C. Adamo, New York, NY, for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (McLoughlin, J.), rendered July 27, 2016, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his plea was not knowing, voluntary, and intelligent because the County Court failed to advise him of the constitutional rights he was waiving by pleading guilty. This contention is unpreserved for appellate review, because the defendant did not move to vacate his plea or otherwise raise the issue in the County Court (see CPL 220.60 [3] ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Coleman, 138 A.D.3d 1014, 1015, 29 N.Y.S.3d 552 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ; cf. People v. Tyrell, 22 N.Y.3d 359, 981 N.Y.S.2d 336, 4 N.E.3d 346 ). In any event, this contention is without merit. The court adequately advised the defendant of his fundamental constitutional rights, as well as other rights, he was surrendering by pleading guilty (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 ), and the record affirmatively demonstrates the defendant's understanding and waiver of these rights, and the entry of a knowing, voluntary, and intelligent plea of guilty (see People v. Harris, 61 N.Y.2d 9, 19–20, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Sirico, 135 A.D.3d 19, 22, 18 N.Y.S.3d 430 ; cf. People v. Tyrell, 22 N.Y.3d 359, 981 N.Y.S.2d 336, 4 N.E.3d 346 ).

The defendant's valid waiver of his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339, 341–342, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 254, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ) precludes review of his claim that he was deprived of the effective assistance of counsel except to the extent that the alleged ineffective assistance may have affected the voluntariness of his plea (see People v. Rodriguez, 144 A.D.3d 950, 40 N.Y.S.3d 786 ; People v. Upson, 134 A.D.3d 1058, 21 N.Y.S.3d 688 ). To the extent that the defendant's ineffective assistance of counsel claim survives his valid waiver of the right to appeal, the claim is without merit (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).

The defendant contends that the County Court erred in not affording him youthful offender status. A youth otherwise eligible to be classified as a youthful offender is ineligible for youthful offender treatment if he or she has previously been convicted of and sentenced on a felony (see CPL 720.10[2][b] ). "This restriction, relating to the eligible youth determination, is applicable at the time of conviction" ( People v. Cecil Z., 57 N.Y.2d 899, 901, 456 N.Y.S.2d 753, 442 N.E.2d 1264 ). Here, at the time the defendant pleaded guilty to attempted criminal possession of a weapon in the second degree, he had previously been convicted of and sentenced on a drug felony. Accordingly, the court properly determined that the defendant was not an...