People v. Lynch

• Decision Date: 03 December 1998
• Citation: 683 N.Y.S.2d 297
• Parties: 1998 N.Y. Slip Op. 11,160 The PEOPLE of the State of New York, Respondent, v. Mark A. LYNCH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 297

683 N.Y.S.2d 297

1998 N.Y. Slip Op. 11,160

The PEOPLE of the State of New York, Respondent, v. Mark A. LYNCH, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 3, 1998.

Louis M. Realbuto, Albany, for appellant.

Sol Greenberg, District Attorney (Mirriam Z. Seddiq, of counsel), Albany, for respondent.

Before: CREW, J.P., WHITE, PETERS, CARPINELLO and GRAFFEO, JJ.

CARPINELLO, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered March 20, 1996, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

In satisfaction of a nine-count indictment charging defendant with various theft-related crimes, defendant pleaded guilty to burglary in the third degree. The plea allocution contained a knowing, voluntary and intelligent "withdraw[al] of all motions [he had] made" and waiver of the right to appeal (see, People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182). Indeed, defendant does not argue to the contrary.

Having knowingly, intelligently and voluntarily entered into the guilty plea, which included an explicit waiver of the right to appeal, defendant is precluded from challenging the denial of his suppression motion (see, People v. Dixon, 210 A.D.2d 532, 533, 619 N.Y.S.2d 828), the sufficiency of the Grand Jury evidence against him (see, People v. Cunningham, 229 A.D.2d 669, 669-670, 645 N.Y.S.2d 571; People v. Freeman, 228 A.D.2d 972, 645 N.Y.S.2d 334, lv. denied 88 N.Y.2d 985, 649 N.Y.S.2d 392, 672 N.E.2d 618; People v. Prentice, 175 A.D.2d 315, 572 N.Y.S.2d 406, lv. denied 78 N.Y.2d 1079, 577 N.Y.S.2d 243, 583 N.E.2d 955) and the denial of his request to testify before the Grand Jury (see, People v. Hoppe, 244 A.D.2d 764, 666 N.Y.S.2d 518, lv. denied 91 N.Y.2d 973, 672 N.Y.S.2d 853, 695 N.E.2d 722; People v. Lasher, 199 A.D.2d 595, 605 N.Y.S.2d 973, lv. denied 83 N.Y.2d 855, 612 N.Y.S.2d 386, 634 N.E.2d 987). Defendant's waiver of the right to appeal also precludes judicial review of his claimed denial of effective assistance of counsel "except insofar as the alleged ineffective assistance impacted on the voluntary nature of his plea" (People v. Conyers, 227 A.D.2d 793, 793, 642 N.Y.S.2d 450, lv. denied 88 N.Y.2d 982, 649 N.Y.S.2d 389, 672 N.E.2d 615; see, People v. Ellett, 245 A.D.2d 952, 667 N.Y.S.2d 137, lv. denied 91 N.Y.2d 925, 670 N.Y.S.2d 407, 693 N.E.2d 754).

Given our finding that the plea was entered into voluntarily, that defendant himself does not attack the...