PEOPLE v. PHILLIPS (2008)

Defendant appeals from a judgment convicting him, upon his plea of guilty, of escape in the first degree (Penal Law § 205.15[1] ).   Contrary to the contention of defendant, we conclude that his waiver of the right to appeal is valid (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   Although the further contention of defendant that his plea was not knowing, voluntary and intelligent survives his valid waiver of the right to appeal and he preserved that contention for our review (see generally People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 26, 700 N.E.2d 564), we conclude that is belied by the record. We also reject the contention of defendant that Supreme Court abused its discretion in denying his motion to withdraw the plea.   Where, as here, there is no “ ‘evidence of innocence, fraud, or mistake [in the inducement of the plea],’ ” the court's refusal to permit a defendant to withdraw his or her plea does not constitute an abuse of discretion (People v. Thomas, 17 A.D.3d 1047, 1047, 793 N.Y.S.2d 652, lv. denied 5 N.Y.3d 770, 801 N.Y.S.2d 264, 834 N.E.2d 1274;  see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797;  People v. Phillips [Appeal No. 1], --- A.D.3d ----, 867 N.Y.S.2d 324 [2008] ).   Furthermore, to the extent that the contention of defendant that the court abused its discretion in denying his motion seeking to discharge defense counsel survives the plea and defendant's valid waiver of the right to appeal, we conclude that it is lacking in merit (see Phillips [Appeal No. 1], --- A.D.3d at ----, 867 N.Y.S.2d 324).

The further contention of defendant that the court erred in sentencing him as a persistent felony offender because Penal Law § 70.10 and CPL 400.20 are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is not preserved for our review (see People v. Daniels, 5 N.Y.3d 738, 740, 800 N.Y.S.2d 369, 833 N.E.2d 704, cert. denied 546 U.S. 988, 126 S.Ct. 573, 163 L.Ed.2d 479).   In any event, that contention is without merit (see People v. Rivera, 5 N.Y.3d 61, 66-68, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473).   Finally, the challenge by defendant to the severity of the sentence is encompassed by his waiver of the right to appeal (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

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

MEMORANDUM: