People v. Hyland

• Decision Date: 03 December 2014
• Docket Number: 2009-06382
• Citation: 123 A.D.3d 736,2014 N.Y. Slip Op. 08455,996 N.Y.S.2d 375
• Parties: The PEOPLE, etc., respondent, v. Terrence HYLAND, appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 736

996 N.Y.S.2d 375

2014 N.Y. Slip Op. 08455

The PEOPLE, etc., respondent

v.Terrence HYLAND, appellant.

2009-06382

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

Dec. 3, 2014.

Virginia Boccio, Farmingdale, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer and Rebecca L. Abensur of counsel; Jason D. Kleiger on the brief), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Ayres, J.), rendered October 2, 2009, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record of the plea proceeding demonstrates that the defendant received “[an] explanation of the nature of the right to appeal and the consequences of waiving that right” (People v. Brown, 122 A.D.3d 133, 133, 992 N.Y.S.2d 297 ). Under the circumstances, which include consideration of the defendant's individual characteristics, we conclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Hidalgo, 91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46 ). Accordingly, to the extent that the defendant challenges the factual sufficiency of his plea allocution, the valid appeal waiver precludes review of that contention (see People v. King, 115 A.D.3d 986, 987, 982 N.Y.S.2d 178 ; People v. Reina, 35 A.D.3d 509, 509–510, 826 N.Y.S.2d 143 ; People v. Mydosh, 27 A.D.3d 580, 580, 810 N.Y.S.2d 370 ; People v. Curras, 1 A.D.3d 445, 446, 766 N.Y.S.2d 892 ).

The defendant's contention that the Supreme Court erred in denying his motion to withdraw his plea since it was not knowingly, voluntarily, and intelligently made survives the valid waiver of his right to appeal (see People v. Lofton, 115 A.D.3d 989, 989, 982 N.Y.S.2d 587 ; People v. Persaud, 109 A.D.3d 626, 626, 970 N.Y.S.2d 324 ; People v. Morrow, 48 A.D.3d 704, 705, 852 N.Y.S.2d 327 ; see also People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). However, contrary to the defendant's contention, the record demonstrates that the defendant knowingly, voluntarily, and intelligently pleaded guilty and, under the circumstances, the Supreme Court providently exercised its discretion in denying his pro se motion to withdraw his plea (see People v. Griffith, 78 A.D.3d 1194, 1195, 913 N.Y.S.2d 264 ; People v. Gully, 17...