People v. Marziale
| Decision Date | 30 April 1992 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Victor F. MARZIALE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael Kernan, Albany, for appellant.
Michael V. Coccoma, Dist. Atty., Cooperstown, for respondent.
Before WEISS, P.J., and CREW, MAHONEY, CASEY and HARVEY, JJ.
Appeal from a judgment of the County Court of Otsego County (Mogavero Jr., J.), rendered July 29, 1991, convicting defendant upon his plea of guilty of the crime of murder in the second degree.
Defendant was indicted for murder in the second degree and arson in the second degree in connection with the death of Robert Smith. The evidence establishes that defendant had been living with Smith's estranged wife. Upon learning that the wife intended to reconcile with Smith, defendant admitted that he went to Smith's home, parked his car at a distance from the residence and went the remaining distance on foot. At the house, an altercation ensued in the dining room during which defendant stabbed Smith multiple times in the chest, back and throat. Defendant then dragged the body into the living room and set it ablaze. He ultimately pleaded guilty to murder in the second degree in satisfaction of all charges. During the lengthy plea allocution, defendant expressly waived his right to appeal.
Before sentence was imposed, defendant moved to withdraw the plea on grounds that during the colloquy he never stated that he stabbed Smith or that he intended to kill him, thus making County Court's acceptance of the plea in violation of the principles espoused in People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330; that his use of the prescription drug Dilantin to control his epileptic seizures was sufficient to require the conducting of a psychiatric or neurological examination to determine his mental competence prior to the court's accepting the plea; that the plea was coerced by his former attorney; and that the plea was the result of ineffective assistance of counsel because counsel allegedly did not discuss the availability of the defense of extreme emotional disturbance. County Court denied the motion. Defendant appeals from the judgment of conviction.
It is now clear that criminal defendants may validly waive their rights to appeal as part of a negotiated plea bargain (People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Such a waiver, if knowingly, intelligently and voluntarily given, operates to foreclose all appellate review including review in the interest of justice (id., at 9-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022), except in instances...
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...we have determined that defendant's waiver of appeal was valid, appellate review of this issue is foreclosed (see, People v. Marziale, 182 A.D.2d 1035, 1036, 583 N.Y.S.2d 36, lv denied 80 N.Y.2d 835, 587 N.Y.S.2d 919, 600 N.E.2d 646). In any event, defendant's claim lacks merit. He stated a......
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...Brown, 160 A.D.2d 1039, 553 N.Y.S.2d 246). Thus, the waiver is fully enforceable and precludes appellate review (see, People v. Marziale, 182 A.D.2d 1035, 583 N.Y.S.2d 36, lv. denied 80 N.Y.2d 835, 587 N.Y.S.2d 919, 600 N.E.2d Defendant further argues that the waiver was invalid because he ......
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