PEOPLE v. STEINMETZ (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal mischief in the third degree (Penal Law § 145.05[2] ).  We reject defendant's contention that his waiver of the right to appeal is invalid.  Defendant signed a plea agreement that required him to waive his right to appeal, and County Court's “plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that ‘the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v. Kulyeshie, 71 A.D.3d 1478, 1478, 895 N.Y.S.2d 909 [4th Dept. 2010], lv denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010];  see People v. Bryant, 28 N.Y.3d 1094, 1095–1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ).  Even assuming, arguendo, that defendant's challenges to his Alford plea survive his valid waiver of appeal, we conclude that those challenges are unpreserved for our review because defendant failed to raise them as part of a motion to withdraw his plea or to vacate the judgment of conviction (see People v. Miller, 87 A.D.3d 1303, 1303–1304, 930 N.Y.S.2d 143 [4th Dept. 2011], lv denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967 [2012];  People v. Sherman, 8 A.D.3d 1026, 1026, 778 N.Y.S.2d 376 [4th Dept. 2004], lv denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 [2004] ), and this case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Rivers, 145 A.D.3d 1591, 1592, 45 N.Y.S.3d 743 [4th Dept. 2016], lv denied 29 N.Y.3d 952, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ).  Finally, to the extent that defendant's ineffective assistance of counsel contention survives his Alford plea and waiver of the right to appeal, we conclude that it is without merit inasmuch as the record before us establishes that defendant was afforded meaningful representation (see People v. Blarr [appeal No. 1], 149 A.D.3d 1606, 1606, 54 N.Y.S.3d 468 [4th Dept. 2017], lv denied 29 N.Y.3d 1123, 64 N.Y.S.3d 673, 86 N.E.3d 565 [2017] ).

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

Memorandum: