People v. Okay, 2018–01840

• Decision Date: 15 May 2019
• Docket Number: 2018–01840,S.C.I. No. 205/17
• Citation: 98 N.Y.S.3d 473 (Mem),172 A.D.3d 1104
• Parties: The PEOPLE, etc., Respondent, v. Berit O. OKAY, Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1104

98 N.Y.S.3d 473 (Mem)

The PEOPLE, etc., Respondent,

v.Berit O. OKAY, Appellant.

2018–01840

S.C.I. No. 205/17

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

Submitted—December 14, 2018

May 15, 2019

Del Atwell, East Hampton, NY, for appellant.

Robert Tendy, District Attorney, Carmel, N.Y. (David M. Bishop of counsel; Samantha Sayegh on the brief), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant waived her right to be prosecuted by indictment by a grand jury.

Immediately afterward, she pleaded guilty to burglary in the third degree as charged in a superior court information and waived her right to appeal. Thereafter, she was sentenced, as a second felony offender, to a negotiated term of incarceration.

Contrary to the defendant's contention, the record demonstrates that she knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Sanders, 25 N.Y.3d 337, 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. Batista, 167 A.D.3d 69, 86 N.Y.S.3d 492 ).

The defendant's contention that her plea was not knowing, voluntary, and intelligent survives her appeal waiver (see People v. Bennett, 122 A.D.3d 871, 872, 996 N.Y.S.2d 369 ; People v. Lujan, 114 A.D.3d 963, 964, 980 N.Y.S.2d 815 ). However, the defendant failed to preserve for appellate review her contention that her plea of guilty was not knowing, voluntary, and intelligent, since she did not move to withdraw her plea or otherwise raise the issue before the County Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Melvin, 165 A.D.3d 1291, 1291, 84 N.Y.S.3d 813 ; People v. Lujan, 114 A.D.3d at 964, 980 N.Y.S.2d 815 ). In any event, the defendant's challenge is without merit since the record clearly establishes that her plea of guilty was knowingly, voluntarily, and intelligently entered after she was fully advised of the rights that she was forfeiting by pleading guilty (see People v. Sougou, 26 N.Y.3d 1052, 1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 ; People v. Melvin, 165 A.D.3d at 1291, 84 N.Y.S.3d 813 ; People v. Molina, 146 A.D.3d 815, 816, 46 N.Y.S.3d 122 ).

The defendant's contention that she did not validly waive her right to be prosecuted by indictment also is not precluded by her valid waiver of the right to appeal or by her plea of guilty (see People v. Cardona–Velasquez, 152 A.D.3d 618, 55 N.Y.S.3d 672 ; People v. Sze, 113 A.D.3d 795, 795, 978 N.Y.S.2d 879 ; People v. Libby, 246 A.D.2d 669, 670, 668 N.Y.S.2d 397 ). Nevertheless, her contention that she did not validly waive her right to be prosecuted by indictment is belied by the record (see N.Y. Const. art I, § 6 ; CPL 195.10, 195.20 ; People v. Myers, 32 N.Y.3d 18, 21–22, 84 N.Y.S.3d 406, 109 N.E.3d 555 ; People v. Hickson, 165 A.D.3d 1166, 1167, 85 N.Y.S.3d 546 ; People v. Hill, 269 A.D.2d 404, 405, 702 N.Y.S.2d 390 ).

The defendant's valid waiver of her right to appeal precludes appellate review of her claim of ineffective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of her plea (see People v. Sze, 113 A.D.3d at 796, 978 N.Y.S.2d 879 ; People v. Dunne, 106 A.D.3d 928, 928–929, 964 N.Y.S.2d 663 ; People v. Bajramaj, 54 A.D.3d 769, 769, 864 N.Y.S.2d 66 ). The defendant's contention that her counsel's conduct affected the voluntariness of her plea is without merit, as her attorney provided her with meaningful representation during the plea proceedings (see People v. Caban, 5 N.Y.3d 143, 152, 800...