PEOPLE v. DUZANT (2005)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[3] ) and criminal possession of a weapon in the fourth degree (§ 265.01[2] ).   The waiver by defendant of the right to appeal encompasses his contentions that the sentence is unduly harsh or severe (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46) and that County Court erred in denying his suppression motion (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754).   Because “[t]he denial of an opportunity to testify before the grand jury ․ does not ‘call into question the court's jurisdiction nor [is it] of constitutional magnitude’ ․, our review of that contention is foreclosed by defendant's valid waiver of the right to appeal as well as by defendant's plea of guilty” (People v. Lighthall, 6 A.D.3d 1170, 1171, 776 N.Y.S.2d 404 [citations omitted], lv. denied 3 N.Y.3d 643, 782 N.Y.S.2d 414, 816 N.E.2d 204, quoting People v. Rook, 201 A.D.2d 931, 931, 610 N.Y.S.2d 903).   “Although the waiver of the right to appeal does not encompass the contention that the plea was not knowingly, voluntarily and intelligently entered, defendant failed to move to withdraw the plea or to vacate the judgment of conviction and thus has failed to preserve that contention for our review” (People v. Moore, 6 A.D.3d 1076, 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).   Finally, “[t]he contention of defendant that he was denied effective assistance of counsel does not survive his guilty plea because there is no indication that the alleged ineffective assistance had any impact on the plea bargaining process or the voluntariness of the plea” (People v. Dunn, 261 A.D.2d 940, 940, 690 N.Y.S.2d 349, lv. denied 94 N.Y.2d 822, 702 N.Y.S.2d 592, 724 N.E.2d 384).   In any event, those contentions lack merit.

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

MEMORANDUM: