PEOPLE v. ADAMS (2009)

 On appeal from a judgment convicting him upon his plea of guilty of attempted assault in the first degree (Penal Law §§ 110.00, 120.10[1] ), defendant contends that County Court erred in denying his motion to vacate the plea on the ground that he was mentally incompetent to enter the plea based on his posttraumatic stress disorder.   We reject that contention (see generally People v. Dover, 227 A.D.2d 804, 642 N.Y.S.2d 438, lv. denied 88 N.Y.2d 984, 649 N.Y.S.2d 390, 672 N.E.2d 616).   Contrary to the further contention of defendant, he knowingly, intelligently and voluntarily waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and that valid waiver encompasses his 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;  People v. Moore, 57 A.D.3d 1432, 869 N.Y.S.2d 813, lv. denied 12 N.Y.3d 785, 879 N.Y.S.2d 62, 906 N.E.2d 1096).   The challenge by defendant to the court's alleged error in sentencing him as a second violent felony offender does not survive his waiver of the right to appeal (see People v. Hamilton, 49 A.D.3d 1163, 856 N.Y.S.2d 375), inasmuch as defendant is essentially challenging the procedure pursuant to which he was sentenced as such, rather than the legality of the sentence (see generally People v. Hicks, 201 A.D.2d 831, 608 N.Y.S.2d 543, lv. denied 83 N.Y.2d 911, 614 N.Y.S.2d 393, 637 N.E.2d 284;  People v. Rosado, 199 A.D.2d 833, 834-835, 606 N.Y.S.2d 368, lv. denied 83 N.Y.2d 876, 613 N.Y.S.2d 136, 635 N.E.2d 305).  “Because the power of the court is not implicated by th[at] challenge[ ], appellate review of [that challenge] is foreclosed by the bargained-for waiver of [the right to] appeal” (Rosado, 199 A.D.2d at 835, 606 N.Y.S.2d 368).   In any event, defendant failed to preserve his challenge for our review (see People v. Myers, 52 A.D.3d 1229, 859 N.Y.S.2d 824), and it lacks merit.   Defendant was properly afforded notice of the predicate violent felony inasmuch as he received the predicate felony statement before he was sentenced (see People v. Swan, 60 A.D.3d 1395, 876 N.Y.S.2d 268), and the court's determination that defendant was a second violent felony offender is supported by proof beyond a reasonable doubt (see People v. Williams, 30 A.D.3d 980, 983, 818 N.Y.S.2d 694, lv. denied 7 N.Y.3d 852, 823 N.Y.S.2d 782, 857 N.E.2d 77).

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

MEMORANDUM: