People v. Smith

• Decision Date: 21 April 2021
• Docket Number: 2018–12096,Ind. No. 17–00783
• Citation: 193 A.D.3d 986,142 N.Y.S.3d 834 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Christopher SMITH, appellant.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 986

142 N.Y.S.3d 834 (Mem)

The PEOPLE, etc., respondent,

v.Christopher SMITH, appellant.

2018–12096

Ind. No. 17–00783

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

Argued—March 22, 2021

April 21, 2021

Warren S. Hecht, Forest Hills, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, N.Y. (Edward D. Saslaw of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered September 7, 2018, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, his waiver of the right to appeal was knowing, voluntary, and intelligent (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Scott, 165 A.D.3d 1295, 84 N.Y.S.3d 785 ; People v. Melvin, 165 A.D.3d 1291, 84 N.Y.S.3d 813 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Melvin, 165 A.D.3d 1291, 84 N.Y.S.3d 813 ; People v. Palladino, 140 A.D.3d 1194, 33 N.Y.S.3d 469 ; People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ).

The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Scott, 165 A.D.3d 1295, 84 N.Y.S.3d 785 ; People v. Melvin, 165 A.D.3d 1291, 84 N.Y.S.3d 813 ; People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ; People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371 ). However, the defendant's contention is unpreserved for appellate review because he did not move to withdraw the plea or otherwise raise this issue before the County Court (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Melvin, 165 A.D.3d 1291, 84 N.Y.S.3d 813 ; People v. Pollidore, 123 A.D.3d 1058, 997 N.Y.S.2d 752 ). In any event, this contention is without merit.

The defendant's valid waiver of the right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel to the extent that it does not relate to the voluntariness of his plea (see People v. Scott, 165 A.D.3d 1295, 84 N.Y.S.3d 785 ; People v. Appling, 94 A.D.3d 1135, 942 N.Y.S.2d 617 ). To the extent the defendant argues that he was deprived of the effective assistance of counsel insofar as it relates to the voluntariness of his plea, this contention is based on matter dehors the record and is not properly before this Court on this appeal (see People v. Ruiz–Solano, 188 A.D.3d 1267, 1268, 132 N.Y.S.3d 828 ; People v. Walters, 183 A.D.3d 765, 766, 121 N.Y.S.3d 882 ).

CHAMBERS, J.P., AUSTIN, LASALLE and IANNACCI, JJ.,...