People v. Toliver

• Decision Date: 25 March 2011
• Citation: 919 N.Y.S.2d 256,2011 N.Y. Slip Op. 02158,82 A.D.3d 1581
• Parties: The PEOPLE of the State of New York, Respondent,v.Samuel T. TOLIVER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1581

919 N.Y.S.2d 256

2011 N.Y. Slip Op. 02158

The PEOPLE of the State of New York, Respondent,

v.Samuel T. TOLIVER, Defendant–Appellant.

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

March 25, 2011.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.Samuel T. Toliver, Defendant–Appellant Pro Se.Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of Counsel), for respondent.PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.MEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10[4] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. County Court “did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea” ( People v. Bentley, 63 A.D.3d 1624, 1625, 879 N.Y.S.2d 790, lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014; see People v. Dillon, 67 A.D.3d 1382, 890 N.Y.S.2d 221; People v. Williams, 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334, lv. denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413). Defendant further contends that the court erred in denying his motion to withdraw his guilty plea on the ground that it was not knowingly, intelligently, and voluntarily entered. Although that contention “survives [defendant's] valid waiver of the right to appeal” ( People v. Dozier, 59 A.D.3d 987, 987, 872 N.Y.S.2d 317, lv. denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931; see People v. Murphy, 71 A.D.3d 1466, 896 N.Y.S.2d 760, lv. denied 15 N.Y.3d 754, 906 N.Y.S.2d 827, 933 N.E.2d 226), we conclude that it is without merit. The contention of defendant that his plea was involuntary because he was coerced by defense counsel is belied by his responses to the court's questions during the plea colloquy, indicating that he was pleading guilty voluntarily and that no threats or promises had induced the plea ( see People v. Gimenez, 59 A.D.3d 1088, 872 N.Y.S.2d 625, lv. denied 12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932; People v. Nichols, 21 A.D.3d 1273, 1274, 801 N.Y.S.2d 665, lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165).

Defendant's challenge to the severity of the sentence is encompassed by the valid waiver of the right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46). To the extent that the contention of defendant concerning ineffective assistance of counsel survives his guilty plea and his waiver of the right to appeal ( see People v. Nichols, 32 A.D.3d 1316, 821 N.Y.S.2d 534, lv. denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799 8 N.Y.3d 988, 838 N.Y.S.2d 492, 869 N.E.2d 668; People v. Fifield, 24 A.D.3d 1221, 1222, 807 N.Y.S.2d 256, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797), we conclude that his contention lacks merit ( see...