People v. Soria

• Citation: 2012 N.Y. Slip Op. 07137,99 A.D.3d 1027,952 N.Y.S.2d 300
• Parties: The PEOPLE, etc., respondent, v. Aurelio SORIA, appellant.
• Decision Date: 24 October 2012
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 1027

952 N.Y.S.2d 300

2012 N.Y. Slip Op. 07137

The PEOPLE, etc., respondent,

v.Aurelio SORIA, appellant.

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

Oct. 24, 2012.

Salvatore C. Adamo, New York, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered January 24, 2011, convicting him of rape in the second degree and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his claims that the plea of guilty was not knowingly, voluntarily, and intelligently entered, and that the County Court failed to advise him about the deportation consequences of his plea ( seeCPL 220.60[3]; 470.05[2]; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160;People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Henson, 96 A.D.3d 1076, 946 N.Y.S.2d 897;People v. Ramnaraine, 92 A.D.3d 809, 938 N.Y.S.2d 465). Furthermore, the “rare case” exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929 [internal quotation marks omitted]; see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Young, 88 A.D.3d 918, 918, 931 N.Y.S.2d 235). In any event, the defendant's claims are belied by the record, and the defendant's post-plea statements of innocence made to his probation officer that appear in the presentence investigation report do not warrant vacatur of his plea ( see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329;People v. Gibson, 95 A.D.3d 1033, 1033–1034, 944 N.Y.S.2d 237,lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 473, 975 N.E.2d 919;People v. Ingram, 80 A.D.3d 713, 714, 914 N.Y.S.2d 316;People v. Morales, 17 A.D.3d 487, 795 N.Y.S.2d 240).

By pleading guilty, the defendant forfeited appellate review of his claims of ineffective assistance of counsel that did not directly involve the plea bargaining process ( see People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669;People v. Davis, 95 A.D.3d 1032, 1033, 943 N.Y.S.2d 770,lv. denied19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765;People v. Collier, 71 A.D.3d 909, 910, 895 N.Y.S.2d 848;People v. Turner, 40 A.D.3d 1018, 1019, 834 N.Y.S.2d 666). Furthermore, the defendant's valid waiver of the right to appeal ( see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222;People v. Muniz, 91 N.Y.2d 570, 673 N.Y.S.2d 358, 696 N.E.2d 182;People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108) precludes appellate review of his claims of ineffective assistance of counsel that did not affect the voluntariness of his plea ( see People v. Duah, 91 A.D.3d 884, 936 N.Y.S.2d 907;People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539;People v. Yarborough, 83 A.D.3d 875, 920 N.Y.S.2d 681). To the extent that the defendant contends that ineffective assistance of counsel affected the voluntariness of his plea, the record demonstrates that the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel ( see Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674;People v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112;People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;People v. Yarborough, 83 A.D.3d at 875, 920 N.Y.S.2d 681;People v. Moss, 74 A.D.3d 1360, 903 N.Y.S.2d 265). Moreover, the defendant's claim of ineffective assistance of counsel is refuted by the record of the plea proceeding, in which he...