People v. Chacon-Diaz

203 A.D.3d 846

160 N.Y.S.3d 880 (Mem)

The PEOPLE, etc., respondent,

v.Hector CHACON–DIAZ, appellant.

2019–11626

Ind. No. 18-00262

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

Submitted—January 6, 2022

March 9, 2022

Del Atwell, East Hampton, NY, for appellant.

Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher and Renada N. Lewis of counsel), for respondent.

HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered March 27, 2019, convicting him of predatory sexual assault against a child, 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. Lopez, 199 A.D.3d 704, 704, 153 N.Y.S.3d 877 ; People v. Coplin, 194 A.D.3d 739, 143 N.Y.S.3d 557 ; People v. Carrera, 188 A.D.3d 1247, 132 N.Y.S.3d 779 ). 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. 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, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

By pleading guilty, the defendant forfeited those claims of ineffective assistance of counsel that did not directly involve the plea-negotiation process and sentence (see People v. Johnson, 186 A.D.3d 743, 744, 127 N.Y.S.3d 292 ; People v. Brown, 170 A.D.3d 878, 879, 96 N.Y.S.3d 110 ). Moreover, the defendant's valid waiver of the right to appeal precludes appellate review of his claim of ineffective assistance of counsel, except to the extent that the alleged ineffective assistance of counsel may have affected the voluntariness of his plea (see People v. Brown, 170 A.D.3d at 879, 96 N.Y.S.3d 110 ; People v. Weston, 145 A.D.3d 746, 747, 43 N.Y.S.3d 413 ).

To the extent the defendant contends that the alleged ineffective assistance of counsel involved the negotiation of the plea and affected the voluntariness thereof, the record demonstrates that he received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel (see People v. Arce, 196 A.D.3d 696, 697, 148 N.Y.S.3d 687 ; People v. Andrea, 98 A.D.3d 627, 627–628, 949 N.Y.S.2d 654 ). Further, the defendant's claim is belied by his statements during the plea proceeding, in which he acknowledged under oath that he was satisfied with his counsel's representation, that he had not been forced into pleading guilty, and that he was entering the plea freely and voluntarily (see People v. Rodriquez, 194 A.D.3d 1078, 1079, 144...