People v. Mccarthy

• Decision Date: 29 April 2011
• Citation: 921 N.Y.S.2d 755,83 A.D.3d 1533,2011 N.Y. Slip Op. 03413
• Parties: The PEOPLE of the State of New York, Respondent,v.Ronald E. McCARTHY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1533
921 N.Y.S.2d 755
2011 N.Y. Slip Op. 03413

The PEOPLE of the State of New York, Respondent,
v.
Ronald E. McCARTHY, Defendant–Appellant.

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

April 29, 2011.

[921 N.Y.S.2d 756]

Linda M. Campbell, Syracuse, for Defendant–Appellant.Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.MEMORANDUM:

[83 A.D.3d 1533] Defendant appeals from a judgment convicting him upon his plea of guilty of attempted aggravated murder (Penal Law §§ 110.00, 125.26[1] ) and arson in the third degree (§ 150.10[1] ). We reject defendant's contention that his waiver of the right to appeal is invalid. County Court “made clear that [83 A.D.3d 1534] the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( People v. Graham, 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490, lv. denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. McKeon, 78 A.D.3d 1617, 910 N.Y.S.2d 623). Defendant's further contention that his plea was not knowing, intelligent and voluntary “ ‘because he did not recite the underlying facts of the crime[s] but simply replied to County Court's questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution,’ which is encompassed by the valid waiver of the right to appeal” ( People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489, lv. denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060, quoting People v. Bailey, 49 A.D.3d 1258, 1259, 852 N.Y.S.2d 892, lv. denied 10 N.Y.3d 932, 862 N.Y.S.2d 338, 892 N.E.2d 404; see People v. Grimes, 53 A.D.3d 1055, 1056, 860 N.Y.S.2d 723, lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101). Defendant's challenge to the sufficiency of the factual allocution is unpreserved for our review inasmuch as he did not move to withdraw the plea or to set aside the judgment of conviction on that ground ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5). In any event, there is no merit to defendant's challenge because “there is no requirement that defendant recite the underlying facts of the crime to which he [or she] is pleading guilty” ( Bailey, 49 A.D.3d at 1259, 852 N.Y.S.2d 892).

The valid waiver by defendant of the right to appeal does not encompass his challenge to the amount...