People v. Santos–rivera

• Decision Date: 21 July 2011
• Citation: 927 N.Y.S.2d 236,86 A.D.3d 790,2011 N.Y. Slip Op. 05988
• Parties: The PEOPLE of the State of New York, Respondent,v.Josue SANTOS–RIVERA, Appellant.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 790
927 N.Y.S.2d 236
2011 N.Y. Slip Op. 05988

The PEOPLE of the State of New York, Respondent,
v.
Josue SANTOS–RIVERA, Appellant.

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

July 21, 2011.

[927 N.Y.S.2d 237]

Jan Perlin, Oak Hill, for appellant.James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), for respondent.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ.MALONE JR., J.

[86 A.D.3d 790] Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered December 1, 2008, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

In satisfaction of a two-count indictment charging him with murder in the second degree and criminal possession of a weapon in the second degree, defendant pleaded guilty to the top count and waived his right to appeal. He was sentenced pursuant to the plea agreement to a prison term of 22 years to life. Contending that he received the ineffective assistance of counsel, defendant now appeals and we affirm.

As an initial matter, defendant's valid waiver of his right to appeal precludes his claim of ineffective assistance to the extent that it did not impact the voluntariness of his plea ( see People v. Buckler, 80 A.D.3d 889, 890, 914 N.Y.S.2d 773 [2011]; People v. Leigh, 71 A.D.3d 1288, 1288, 897 N.Y.S.2d 744 [2010], lv. denied 15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010]; [86 A.D.3d 791] People v. McDuffie, 43 A.D.3d 559, 560, 840 N.Y.S.2d 253 [2007], lv. denied 9 N.Y.3d 992, 848 N.Y.S.2d 609, 878 N.E.2d 1025 [2007] ).¹ Thus, defendant's contentions regarding counsel's performance at the suppression hearing and other preplea court appearances

[927 N.Y.S.2d 238]

—which do not implicate counsel's representation in such a way as directly affected the voluntariness of defendant's subsequent plea—are not properly considered when assessing his claim of ineffective assistance of counsel ( see People v. Buckler, 80 A.D.3d at 890, 914 N.Y.S.2d 773; People v. Gentry, 73 A.D.3d 1383, 1384, 901 N.Y.S.2d 429 [2010]; People v. McDuffie, 43 A.D.3d at 560, 840 N.Y.S.2d 253; see generally People v. Parilla, 8 N.Y.3d 654, 659–660, 838 N.Y.S.2d 824, 870 N.E.2d 142 [2007] ). A review of the plea allocution reveals that defendant's plea was knowingly, voluntarily and intelligently made, and we note that defendant stated at the allocution that he had not been pressured or coerced into pleading guilty and he was...