PEOPLE v. PETERSEN (2009)

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).   Although the challenge by defendant to the voluntariness of the plea survives his valid waiver of the right to appeal (see 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), defendant failed to preserve that challenge for our review (see People v. Collins, 45 A.D.3d 1472, 846 N.Y.S.2d 829, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250;  DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140).   This case does not fall within the narrow exception to the preservation doctrine (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Although defendant initially denied that he possessed the cocaine with the intent to sell it, County Court conducted the requisite further inquiry, whereupon defendant admitted his commission of that element of the crime (see id.;  People v. Pane, 292 A.D.2d 850, 738 N.Y.S.2d 799, lv. denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615;  People v. Brow, 255 A.D.2d 904, 905, 682 N.Y.S.2d 320).   To the extent that the further contention of defendant that he was denied effective assistance of counsel survives his guilty plea and valid waiver of the right to appeal (see generally People v. Fifield, 24 A.D.3d 1221, 1222, 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 conclude that it lacks merit.   Defendant “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Finally, the valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 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: