People v. Drake

199 A.D.3d 827

154 N.Y.S.3d 272 (Mem)

The PEOPLE, etc., respondent,

v.William DRAKE, appellant.

2019–01984

S.C.I. No. 265/18

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

Submitted—September 21, 2021

November 10, 2021

Carol Kahn, New York, NY, for appellant.

William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered January 7, 2019, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his waiver of the right to appeal was invalid because it was initiated by the County Court rather than the prosecutor is unsupported by the record (see generally People v. Banks, 244 A.D.2d 560, 560, 664 N.Y.S.2d 816 ).

As correctly acknowledged by the People, the defendant's argument that his plea of guilty was not knowing, voluntary, and intelligent because he was misadvised by the County Court as to the maximum sentence exposure he faced if convicted after trial, survives his valid waiver of the right to appeal and is reviewable, despite his failure to seek to withdraw the plea before sentencing (see People v. Keller, 168 A.D.3d 1098, 1099, 92 N.Y.S.3d 415 ). In this case, considering the totality of the circumstances surrounding the defendant's plea of guilty, including that he agreed to plead guilty before the court misstated the maximum sentence he could face if convicted after trial, indicating that the defendant did not rely on the misstatement in deciding to plead guilty, the defendant's experience with the criminal justice system, and the advantageous plea bargain that he received, we conclude that the plea of guilty was knowing, voluntary, and intelligent (see People v. Principato, 194 A.D.3d 851, 147 N.Y.S.3d 135 ; People v. Amico, 191 A.D.3d 797, 798, 138 N.Y.S.3d 359 ).

By pleading guilty, the defendant forfeited review of any claim of ineffective assistance of counsel that did not directly involve the plea negotiation process (see People v. Brown, 170 A.D.3d 878, 879, 96 N.Y.S.3d 110 ; People v. Fakhoury, 103 A.D.3d 664, 959 N.Y.S.2d 269 ). Moreover, the defendant's valid waiver of his right to appeal precludes review of his claim of ineffective assistance of counsel, except to the extent that the alleged ineffective assistance 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. Perez, 51 A.D.3d 1043, 861 N.Y.S.2d 63 ). To the extent that the defendant contends that the ineffective assistance of counsel affected the voluntariness of his plea, the record demonstrates that he received an...