PEOPLE v. VANDEVIVER (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of one count of conspiracy in the second degree (Penal Law § 105.15) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   Contrary to the contention of defendant, the record establishes that he knowingly, voluntarily and intelligently 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;  People v. Baxter, 302 A.D.2d 950, 951, 757 N.Y.S.2d 915, lv. denied 99 N.Y.2d 652, 760 N.Y.S.2d 116, 790 N.E.2d 290).   Although the contention of defendant that his plea was not knowingly, intelligently and voluntarily entered survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction on the grounds now raised (see People v. Moore, 6 A.D.3d 1076, 775 N.Y.S.2d 615, lv. denied 3 N.Y.3d 661, 782 N.Y.S.2d 703, 816 N.E.2d 576).   In any event, defendant's contention lacks merit.   We conclude that the plea was voluntary despite defendant's “rote answers of ‘yes' or ‘no’ ” to County Court's inquiries (People v. Wilson, 38 A.D.3d 1348, 832 N.Y.S.2d 333, lv. denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901), and the record further establishes that “defendant was rational and coherent during the entire plea proceeding” (People v. Rodriguez, 28 A.D.3d 403, 404, 813 N.Y.S.2d 429, lv. denied 7 N.Y.3d 817, 822 N.Y.S.2d 492, 855 N.E.2d 808).

 Defendant also failed to preserve for our review his contention that the court erred in enhancing his sentence without affording him the opportunity to withdraw his plea (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  People v. Perry, 252 A.D.2d 990, 675 N.Y.S.2d 924, lv. denied 92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282).   In any event, that contention lacks merit.   Defendant violated the plea agreement by failing to appear on the scheduled sentencing date, and the court thus “was no longer bound by the plea promise and could properly impose an enhanced sentence” (People v. Figgins, 87 N.Y.2d 840, 841, 637 N.Y.S.2d 684, 661 N.E.2d 156).

 To the extent that the further contention of defendant that he was denied effective assistance of counsel is based on matters outside the record, he must raise that contention by way of a motion pursuant to CPL article 440 (see People v. Logan, 2 A.D.3d 1392, 768 N.Y.S.2d 863, lv. denied 2 N.Y.3d 742, 778 N.Y.S.2d 468, 810 N.E.2d 921).   Although the remainder of defendant's contention concerns matters that appear on the record before us, we conclude that, to the extent that it survives the plea and defendant's 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), it is lacking in merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Finally, because the court advised defendant of the maximum sentence that could be imposed upon his failure to appear at sentencing, “the waiver by defendant of the right to appeal encompasses [his] further contention that the enhanced sentence is unduly harsh or severe” (People v. Jackson, 34 A.D.3d 1318, 1319, 824 N.Y.S.2d 851, lv. denied 8 N.Y.3d 923, 834 N.Y.S.2d 514, 866 N.E.2d 460;  see People v. Milczakowskyj, 286 A.D.2d 928, 730 N.Y.S.2d 905, lv. denied 97 N.Y.2d 657, 737 N.Y.S.2d 58, 762 N.E.2d 936).

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

MEMORANDUM: