PEOPLE v. JAMISON (2010)

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of three counts of attempted aggravated murder (Penal Law §§ 110.00, 125.26[1][a][i] ).   We reject at the outset the contention of defendant that his waiver of the right to appeal is void as against public policy (see People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182).   Also contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was voluntary, knowing and intelligent (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Grimes, 53 A.D.3d 1055, 1055-1056, 860 N.Y.S.2d 723, lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101).

 The further contention of defendant that his plea was not voluntary, knowing and intelligent because he did not recite the underlying facts of the crimes to which he pleaded guilty but simply replied to County Court's questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution.   That challenge is encompassed by the valid waiver of the right to appeal (see People v. Brown, 66 A.D.3d 1385, 885 N.Y.S.2d 660;  People v. Peters, 59 A.D.3d 928, 873 N.Y.S.2d 397, lv. denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935;  People v. Bailey, 49 A.D.3d 1258, 852 N.Y.S.2d 892, lv. denied 10 N.Y.3d 932, 862 N.Y.S.2d 338, 892 N.E.2d 404) and, in any event, defendant failed to preserve that challenge for our review by moving to withdraw the plea or by raising that ground in his motion to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  Bailey, 49 A.D.3d at 1259, 852 N.Y.S.2d 892).   With respect to the merits of that challenge, we note that “there is no requirement that defendant recite the underlying facts of the crime[s] to which he is pleading guilty” (Bailey, 49 A.D.3d at 1259, 852 N.Y.S.2d 892;  see People v. VanDeViver, 56 A.D.3d 1118, 867 N.Y.S.2d 586, lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450, 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099).

 In appeal No. 2, defendant appeals from an order denying his pro se CPL 440.30 motion to vacate the judgment of conviction.   This Court granted defendant leave to appeal from that order pursuant to CPL 450.15(1).   We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to pursue the defense that defendant was not guilty by reason of mental defect.   The record establishes that defendant both understood the nature of the plea and sentence and denied any mental incapacity during the plea proceedings (see People v. Courcelle, 15 A.D.3d 688, 689, 788 N.Y.S.2d 720, lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677), and two psychiatric evaluations conducted pursuant to CPL article 730 that were completed one month after the commission of the crimes to which he pleaded guilty indicated that defendant's prior psychiatric diagnoses did not affect the ability of defendant to understand the nature of the charges against him and concluded that he was competent to stand trial.   We thus conclude that defendant failed to demonstrate the absence of a strategic basis for defense counsel's failure to pursue that defense (see People v. Crespo, 49 A.D.3d 1308, 854 N.Y.S.2d 608;  see generally People v. Rivera, 71 N.Y.2d 705, 708-709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Indeed, the record establishes that defendant received an advantageous plea agreement, and nothing in the record suggests that defense counsel's representation was anything less than meaningful (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Contrary to defendant's contention, the court properly denied the motion without conducting a hearing “because, given the nature of the claimed ineffective assistance, the motion could be determined on the trial record and defendant's submissions on the motion” (People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  see People v. Lake, 235 A.D.2d 921, 654 N.Y.S.2d 185, lv. denied 89 N.Y.2d 1091, 1096, 660 N.Y.S.2d 385, 390, 682 N.E.2d 986, 991;  People v. Shamblee, 222 A.D.2d 834, 635 N.Y.S.2d 321, lv. denied 88 N.Y.2d 994, 649 N.Y.S.2d 401, 672 N.E.2d 627).

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

MEMORANDUM: