THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL KING DEFENDANT APPELLANT (2017)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon his plea of guilty, of driving while intoxicated as a class D felony (Vehicle and Traffic Law §§ 1192[3];  1193[1][c][ii] ) and sentencing him to an indeterminate term of incarceration of 12/323 to 5 years.  Even assuming, arguendo, that defendant's waiver of the right to appeal was invalid and thus does not preclude our review of his challenge to the severity of the sentence (see People v. Davis, 114 AD3d 1166, 1167, lv denied 23 NY3d 1035;  People v. Theall, 109 AD3d 1107, 1108, lv denied 22 NY3d 1159), we nevertheless conclude that the sentence is not unduly harsh or severe.

Defendant contends in his pro se supplemental brief that he was denied effective assistance of counsel.  That contention does not survive his guilty plea because defendant failed to demonstrate that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance” (People v. Lucieer, 107 AD3d 1611, 1612 [internal quotation marks omitted];  see People v. VanVleet, 140 AD3d 1633, 1633, lv denied 28 NY3d 938).  In any event, we conclude that “defendant was afforded meaningful representation inasmuch as he ‘receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel’ “ (People v. Cooper, 136 AD3d 1397, 1398, lv denied 27 NY3d 1067;  see People v. Ford, 86 N.Y.2d 397, 404;  People v. Parson, 122 AD3d 1441, 1443).

We have considered defendant's remaining contention, a challenge to the court's jurisdiction that survives the guilty plea and would survive even a valid waiver of the right to appeal (see People v. Hansen, 95 N.Y.2d 227, 230–231;  see also People v. Oliveri, 49 AD3d 1208, 1209;  People v. June, 30 AD3d 1016, 1017, lv denied 7 NY3d 813, reconsideration denied 7 NY3d 868), and we conclude that the contention is without merit.

Frances E. Cafarell

Clerk of the Court