People v. Cunningham

213 A.D.3d 1270

182 N.Y.S.3d 459

The PEOPLE of the State of New York, Respondent,

v.Gregory S. CUNNINGHAM, Defendant-Appellant.

981

KA 21-01563

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

Entered: February 3, 2023

HAYDEN M. DADD, CONFLICT DEFENDER, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree ( Penal Law § 120.10 [1] ). Contrary to defendant's contention, his waiver of the right to appeal was knowing, voluntary, and intelligent (see generally People v. Thomas , 34 N.Y.3d 545, 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Brackett , 174 A.D.3d 1542, 1542, 103 N.Y.S.3d 898 [4th Dept. 2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019] ). That valid waiver forecloses defendant's challenges to the severity of the sentence (see People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hidalgo , 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ) and the factual sufficiency of his plea allocution (see People v. Oliver , 178 A.D.3d 1463, 1464, 112 N.Y.S.3d 637 [4th Dept. 2019], lv denied 39 N.Y.3d 987, 181 N.Y.S.3d 194, 201 N.E.3d 811 [2022] ; People v. Yates , 173 A.D.3d 1849, 1850, 103 N.Y.S.3d 728 [4th Dept. 2019] ; People v. Steinbrecher , 169 A.D.3d 1462, 1463, 93 N.Y.S.3d 787 [4th Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 652, 130 N.E.3d 1262 [2019] ).

Defendant further contends that his plea was not knowingly, voluntarily, and intelligently entered because a potential defense was raised both prior to the plea proceeding and by statements he made at sentencing. Although that contention survives defendant's waiver of the right to appeal, it is not preserved for our review because defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction on that ground (see People v. Brown , 204 A.D.3d 1519, 1519, 167 N.Y.S.3d 293 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 456, 457, 191 N.E.3d 408, 409 [2022]; People v. Allen , 137 A.D.3d 1719, 1720, 27 N.Y.S.3d 413 [4th Dept. 2016], lv denied 27 N.Y.3d 1127, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016] ; People v. Wilson , 115 A.D.3d 1229, 1229, 982 N.Y.S.2d 636 [4th Dept. 2014], lv denied 23 N.Y.3d 969, 988 N.Y.S.2d 577, 11 N.E.3d 727 [2014] ). The narrow exception to the preservation rule set forth in People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988) does not apply in this case because defendant said "[n]othing ... during the plea colloquy itself" that negated an element of the pleaded-to crime or otherwise called into doubt the voluntariness of his plea ( People v. Mobayed , 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; see also People v. Romanowski , 196 A.D.3d 1081, 1082, 149 N.Y.S.3d 740 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 432, 175 N.E.3d 457 [2021] ).

Defendant's contention that he was denied effective assistance of counsel survives his guilty plea and valid waiver of the right to appeal "only insofar as he demonstrates that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney[’s] allegedly poor performance" ( People v. Rausch , 126 A.D.3d 1535, 1535, 6 N.Y.S.3d 863 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] [internal quotation marks omitted]). To the extent that defendant's contention is based on defense counsel's alleged failure to investigate or prepare a defense of mental disease or defect, it is unreviewable on direct appeal because it involves matters outside the record (see People v. Boyde , 71 A.D.3d 1442, 1443, 897 N.Y.S.2d 570 [4th Dept. 2010], lv denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219 [2010] ; People v. Washington , 39 A.D.3d 1228, 1230, 834 N.Y.S.2d 407 [4th Dept. 2007], lv denied 9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205 [2007] ). To the extent that defendant's contention survives his plea and appeal waiver and is reviewable on direct appeal, we conclude that it lacks merit inasmuch as nothing in the record suggests that defense couns...