People v. McIntyre

208 A.D.3d 1365

174 N.Y.S.3d 594 (Mem)

The PEOPLE, etc., respondent,

v.Ulysses L. MCINTYRE, appellant.

2020–09008

Ind. No. 1733/18

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

Submitted—September 6, 2022

September 28, 2022

Del Atwell, East Hampton, NY, for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Marion Tang of counsel), for respondent.

MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mark Cohen, J.), rendered November 2, 2020, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's waiver of his right to appeal, the validity of which he does not challenge, precludes appellate review of his contention that the procedure used to adjudicate him a predicate felony offender was defective (see People v. Leon, 200 A.D.3d 717, 154 N.Y.S.3d 875 ; People v. Meyers, 172 A.D.3d 1236, 1237, 98 N.Y.S.3d 879 ; People v. Thomas, 148 A.D.3d 734, 47 N.Y.S.3d 715 ).

To the extent the defendant contends that his plea of guilty was involuntary, this contention survives the valid waiver of the right to appeal, but is unpreserved for appellate review as the defendant did not move to withdraw his plea on this ground or otherwise raise this issue before the Supreme Court (see People v. Jensen, 205 A.D.3d 926, 926–927, 166 N.Y.S.3d 579 ). In any event, the record establishes that the defendant's plea was made knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ).

The defendant's valid waiver of his right to appeal further 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. Rosario, 204 A.D.3d 703, 163 N.Y.S.3d 849 ; People v. Tenesaca, 199 A.D.3d 941, 942, 154 N.Y.S.3d 452 ; People v. Brown, 170 A.D.3d 878, 879, 96 N.Y.S.3d 110 ). To the extent the defendant contends that the alleged ineffective assistance of counsel impacted 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" ( People v. Brown, 170 A.D.3d at 879, 96 N.Y.S.3d 110...