PEOPLE v. THOMAS (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [former (4) ] ).   Contrary to the contention of defendant, we conclude that he validly waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   The challenge by defendant to the factual sufficiency of the plea allocution does not survive his valid waiver of the right to appeal (People v. Dean, 48 A.D.3d 1244, 852 N.Y.S.2d 545, lv. denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85).   The contention of defendant that he was denied due process based on prosecutorial misconduct is also encompassed by his valid waiver of the right to appeal (see People v. Fifield, 24 A.D.3d 1221, 1223, 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 reject the contention of defendant that County Court abused its discretion in denying his motion to withdraw the plea without conducting a hearing (see People v. Farley, 34 A.D.3d 1229, 824 N.Y.S.2d 517, lv. denied 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622).

 To the extent that the contention of defendant that he was denied effective assistance of counsel survives the plea and his waiver of the right to appeal (see People v. Santos, 37 A.D.3d 1141, 827 N.Y.S.2d 917, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243), we conclude that it is without merit (see Fifield, 24 A.D.3d at 1222, 807 N.Y.S.2d 256;  see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Defendant's challenge to the voluntariness of the plea survives the appeal waiver, but defendant's “factual recitation ‘did not negate any element of th[e] crime[s] or call into doubt his guilt or the voluntariness of the plea, so as to require further inquiry by County Court’ ” (People v. Wyant, 47 A.D.3d 1068, 849 N.Y.S.2d 357, lv. denied 10 N.Y.3d 873, 860 N.Y.S.2d 499, 890 N.E.2d 262, quoting People v. Simmons, 27 A.D.3d 786, 811 N.Y.S.2d 460, lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 888, 853 N.E.2d 259).   Contrary to the further contention of defendant, he was properly sentenced as a persistent violent felony offender (see People v. Figgins, 48 A.D.3d 1042, 1043, 849 N.Y.S.2d 845, lv. denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86).

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

MEMORANDUM: