PEOPLE v. GIMENEZ (2009)

Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25[1] ).   Contrary to the contention of defendant, his waiver of the right to appeal was knowingly, intelligently and voluntarily entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Gilbert, 17 A.D.3d 1164, 793 N.Y.S.2d 847, lv. denied 5 N.Y.3d 762, 801 N.Y.S.2d 257, 834 N.E.2d 1267).   That valid waiver encompasses defendant's challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).   Although the further contention of defendant that his plea was not knowingly, voluntarily, and intelligently entered survives his waiver of the right to appeal, defendant failed to preserve that contention for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Carmody, 53 A.D.3d 1048, 861 N.Y.S.2d 548, lv. denied 11 N.Y.3d 830, 868 N.Y.S.2d 605, 897 N.E.2d 1089;  People v. Adams, 26 A.D.3d 597, 811 N.Y.S.2d 129, lv. denied 7 N.Y.3d 751, 819 N.Y.S.2d 877, 853 N.E.2d 248;  People v. Beekman, 280 A.D.2d 784, 721 N.Y.S.2d 146, lv. denied 96 N.Y.2d 780, 725 N.Y.S.2d 644, 749 N.E.2d 213).   In any event, defendant's contention lacks merit (see generally People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311).   Any challenge by defendant to the voluntariness of the plea based on alleged coercion is belied by defendant's responses to County Court's questions during the plea colloquy (see People v. Nichols, 21 A.D.3d 1273, 1274, 801 N.Y.S.2d 665, lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165).   The contention of defendant in his main and pro se supplemental briefs that he was denied effective assistance of counsel survives his guilty plea and waiver of the right to appeal to the extent that he contends that the plea was infected by the alleged ineffective assistance (see Nichols, 21 A.D.3d at 1274, 801 N.Y.S.2d 665;  cf. People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097).   We nevertheless reject that contention (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We have considered the remaining contentions of defendant in his pro se supplemental brief and conclude that they are without merit.

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

MEMORANDUM: