People v. Jessamy

• Decision Date: 16 March 2016
• Citation: 137 A.D.3d 1056,28 N.Y.S.3d 376
• Parties: The PEOPLE, etc., respondent, v. Turhan F. JESSAMY, appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1056

28 N.Y.S.3d 376

The PEOPLE, etc., respondent,

v.Turhan F. JESSAMY, appellant.

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

March 16, 2016.

Del Atwell, East Hampton, N.Y., for appellant.

James A. McCarty, Acting District Attorney, White Plains, N.Y. (Hae Jin Liu and Jennifer Spencer of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert, J.), rendered June 9, 2011, convicting him of reckless endangerment in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, in connection with his guilty plea (see 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, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid waiver precludes appellate review of his challenge to the hearing court's suppression determination (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Hackett, 93 A.D.3d 807, 939 N.Y.S.2d 886 ; People v. Pena, 73 A.D.3d 1216, 900 N.Y.S.2d 913 ; People v. Johnson, 58 A.D.3d 868, 870 N.Y.S.2d 919 ).

The defendant claims that he was deprived of his right to be present at or to participate in the Sandoval hearing (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413

). The defendant forfeited that claim by his plea of guilty and valid waiver of the right to appeal (see People v. Henderson, 233 A.D.2d 253, 254, 650 N.Y.S.2d 640 ; see also People v. Drago, 50 A.D.3d 920, 855 N.Y.S.2d 252 ).

By validly waiving his right to appeal, the defendant forfeited the right to challenge the effectiveness of his trial counsel, except insofar as counsel's alleged deficiencies affected the voluntariness of the defendant's guilty plea itself (see People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669

; People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539 ; People v. Drago, 50 A.D.3d at 920, 855 N.Y.S.2d 252 ). The defendant did not move to vacate the plea, and his challenge to the validity of the guilty plea is therefore not preserved for appellate review (see People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Franco, 104 A.D.3d 790, 960 N.Y.S.2d 507 ). In any event, the record demonstrates that the defendant was afforded the effective assistance of counsel in connection with the guilty plea (see People v. Bennett, 115 A.D.3d 973, 974, 982 N.Y.S.2d 554 ; People v. Howard, 109 A.D.3d 487, 970 N.Y.S.2d 86 ; People v. Perez, 51 A.D.3d 1043, 861 N.Y.S.2d 63 ).