People v. James

• Decision Date: 19 March 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Elliott I. JAMES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 391

71 A.D.3d 1465

The PEOPLE of the State of New York, Respondent,

v.Elliott I. JAMES, Defendant-Appellant.

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

March 19, 2010.

James L. Dowsey, III, West Valley, for Defendant-Appellant.

Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND PINE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ). We reject the contention of defendant that his waiver of the right to appeal was invalid. County Court " 'engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' " ( People v. Glasper, 46 A.D.3d 1401, 1401, 847 N.Y.S.2d 875, lv. denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252; see People v. Wright, 66 A.D.3d 1334, 885 N.Y.S.2d 794). Defendant further contends that the court abused its discretion in denying his motion to withdraw the plea because it was not knowingly, voluntarily and intelligently entered. Although that contention survives defendant's valid waiver of the right to appeal ( see Wright, 66 A.D.3d 1334, 885 N.Y.S.2d 794), it is without merit. "The unsupported allegations of defendant that [defense counsel] pressured him into accepting the plea bargain do not warrant vacatur of his plea" ( People v. Price, 309 A.D.2d 1259, 765 N.Y.S.2d 563, lv. denied 1 N.Y.3d 578, 775 N.Y.S.2d 794, 807 N.E.2d 907; see People v. Thornton [appeal No. 1], 167 A.D.2d 935, 562 N.Y.S.2d 900, lv. denied 78 N.Y.2d 1082, 577 N.Y.S.2d 245, 583 N.E.2d 957). Further,"[t]he record of the plea allocution establishes that defendant understood the proceeding and made a knowing, voluntary and intelligent plea" ( Price, 309 A.D.2d 1259, 765 N.Y.S.2d 563), and there is no indication in the record that the ability of defendant to understand the plea proceeding was impaired based on his drug use two days prior to the proceeding ( see People v. Spikes, 28 A.D.3d 1101, 1102, 813 N.Y.S.2d 602, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809; see also People v. White, 7 A.D.3d 921, 922-923, 777 N.Y.S.2d 544, lv. denied 3 N.Y.3d 683, 784 N.Y.S.2d 21, 817 N.E.2d 839).

To the extent that the contention of defendant that he was denied effective assistance of counsel survives the plea and his waiver of the right to appeal ( see People v. Santos, 37 A.D.3d 1141, 827 N.Y.S.2d 917, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243), it is without merit ( see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). Finally, the valid waiver by defendant of the right to appeal encompasses his challenge to the court's suppression ruling ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754; People v. Eatmon, 66 A.D.3d 1453, 885 N.Y.S.2d 693).

It is hereby ORDERED...