PEOPLE v. SMITH (2007)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of sodomy in the first degree (Penal Law former § 130.50[1] ) and numerous other offenses related to a home invasion robbery.   We reject the contention of defendant that Supreme Court improvidently exercised its discretion in denying his motion to withdraw the plea.   The remarks and conduct of defendant “do not suggest that he lacked the capacity to understand the plea proceeding” (People v. Jones, 8 A.D.3d 1021, 1021, 778 N.Y.S.2d 341, lv. denied 3 N.Y.3d 676, 784 N.Y.S.2d 14, 817 N.E.2d 832;  see People v. Price, 309 A.D.2d 1259, 765 N.Y.S.2d 563, lv. denied 1 N.Y.3d 578, 775 N.Y.S.2d 794, 807 N.E.2d 907), and the record establishes that the guilty plea “ ‘was voluntarily made with the advice of counsel following an appraisal of all the relevant factors' ” (People v. May, 305 A.D.2d 1095, 1095, 759 N.Y.S.2d 716, lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 406, 799 N.E.2d 629, quoting People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329;  see People v. Smith, 5 A.D.3d 1095, 773 N.Y.S.2d 718, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478).   Although defendant was not advised that he would be required to register as a sex offender, such registration is a collateral consequence of the plea and thus the failure to advise defendant of that consequence does not undermine the voluntariness of the plea (see People v. Dorsey, 28 A.D.3d 351, 813 N.Y.S.2d 81, lv. denied 7 N.Y.3d 755, 819 N.Y.S.2d 880, 853 N.E.2d 251;  People v. Coss, 19 A.D.3d 943, 798 N.Y.S.2d 170, lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157).

 Contrary to the further contention of defendant, “[t]he facts and circumstances surrounding [his] plea colloquy establish that the waiver of the right to appeal is valid” (People v. Nichols, 32 A.D.3d 1316, 1317, 821 N.Y.S.2d 534;  see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the bargained-for sentence (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

To the extent that the contention of defendant that he was denied effective assistance of counsel survives the guilty plea and the valid waiver of the right to appeal (see 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;  see also People v. Barnes, 32 A.D.3d 1250, 821 N.Y.S.2d 541;  People v. Perillo, 300 A.D.2d 1097, 751 N.Y.S.2d 897, lv. denied 99 N.Y.2d 618, 757 N.Y.S.2d 829, 787 N.E.2d 1175), we conclude that defendant received meaningful representation (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).

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

MEMORANDUM: