People v. King

• Citation: 92 N.Y.S.3d 895 (Mem),169 A.D.3d 1060
• Decision Date: 27 February 2019
• Docket Number: 2016–13481,Ind.No. 15–503
• Parties: The PEOPLE, etc., Respondent, v. James KING, Also Known as Christian James King, Also Known as Chris King, Also Known as Dolo, Appellant.
• Court: New York Supreme Court Appellate Division

169 A.D.3d 1060

92 N.Y.S.3d 895 (Mem)

The PEOPLE, etc., Respondent,

v.James KING, Also Known as Christian James King, Also Known as Chris King, Also Known as Dolo, Appellant.

2016–13481

Ind.No. 15–503

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

Submitted—December 4, 2018

February 27, 2019

Del Atwell, East Hampton, NY, for appellant.

Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Amanda M. Doty of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Rockland County (William A. Kelly, J.), rendered November 30, 2016, as amended December 7, 2016, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

Under the circumstances of this case, the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; 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 of the right to appeal 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. Jessamy, 137 A.D.3d 1056, 1056, 28 N.Y.S.3d 376 ; People v. Hackett, 93 A.D.3d 807, 939 N.Y.S.2d 886 ).

The defendant's valid waiver of the right to appeal also precludes appellate review of his contention that he was deprived of his right to be present at or to participate in the Sandoval (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) hearing (see People v. Jessamy, 137 A.D.3d at 1056, 28 N.Y.S.3d 376 ). Moreover, the defendant forfeited that claim by pleading guilty (see People v. Jessamy, 137 A.D.3d at 1056, 28 N.Y.S.3d 376 ; People v. Griffin, 118 A.D.3d 721, 986 N.Y.S.2d 358 ).

The defendant's contention that his plea of guilty was not voluntary survives his valid waiver of the right to appeal (see People v. Coachman, 154 A.D.3d 957, 63 N.Y.S.3d 94 ; People v. Lujan, 114 A.D.3d 963, 964, 980 N.Y.S.2d 815 ). However, the defendant failed to preserve this contention for appellate review, since he did not move to vacate his plea or otherwise raise this issue before the Supreme Court (see People v. Coachman, 154 A.D.3d at 957, 63 N.Y.S.3d 94 ; People v. Hutter, 154 A.D.3d 776, 63 N.Y.S.3d 391 ). In any event, the record reflects that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Seeber, 4 N.Y.3d 780, 781, 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 ).

By pleading guilty, the defendant forfeited appellate review of his claim of ineffective assistance of counsel to the extent that the claim does not directly involve the plea negotiation (see People v. Petgen, 55 N.Y.2d 529, 534–535, 450 N.Y.S.2d 299, 435 N.E.2d 669 ; People v. Saliani, 163 A.D.3d 854, 80 N.Y.S.3d 471 ; People v. Boria, 157 A.D.3d 811, 812, 69 N.Y.S.3d 3 ). To the extent that the defendant contends that ineffective assistance of counsel affected the voluntariness of his plea, the record demonstrates that the defendant was afforded meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584...