PEOPLE v. LIVERMORE (2018)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting her upon her plea of guilty of aggravated vehicular homicide (Penal Law § 125.14 [5] ) and driving while intoxicated (Vehicle and Traffic Law § 1192 [2] ).  Contrary to defendant's contention, we conclude that the record establishes that County Court “conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Davis, 129 A.D.3d 1613, 1613, 11 N.Y.S.3d 778 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] [internal quotation marks omitted] ), and that “[t]he 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. Williams, 132 A.D.3d 1291, 1291, 17 N.Y.S.3d 360 [4th Dept. 2015], lv denied 26 N.Y.3d 1151, 32 N.Y.S.3d 65, 51 N.E.3d 576 [2016] [internal quotation marks omitted];  see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).  Contrary to defendant's further contention, the court “was not required to specify during the colloquy which specific claims survive the waiver of the right to appeal” (People v. Rodriguez, 93 A.D.3d 1334, 1335, 940 N.Y.S.2d 508 [4th Dept. 2012], lv denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012];  see People v. Kosty, 122 A.D.3d 1408, 1408, 996 N.Y.S.2d 449 [4th Dept. 2014], lv denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ).

Defendant's contention that her plea was not knowing, intelligent, and voluntary because she simply replied “yes” and “no” to many of the court's questions is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by the valid waiver of the right to appeal (see People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ).  Defendant's further contention that a certain response made by her during the plea colloquy implied that she did not operate the vehicle recklessly is also a challenge to the factual sufficiency of the plea allocution, and that challenge is also encompassed by her valid waiver of the right to appeal (see Kosty, 122 A.D.3d at 1408, 996 N.Y.S.2d 449).  In any event, defendant failed to preserve her contentions for our review because she did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Darling, 125 A.D.3d 1279, 1279, 1 N.Y.S.3d 717 [4th Dept. 2015], lv denied 25 N.Y.3d 1071, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ), and this case does not fall within the narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).

To the extent that defendant's contention that she was denied effective assistance of counsel survives her plea and her valid waiver of the right to appeal (see People v. Cotton, 119 A.D.3d 1452, 1452–1453, 988 N.Y.S.2d 835 [4th Dept. 2014] ) and is reviewable upon this record, we conclude that it is without merit (see People v. Long, 151 A.D.3d 1886, 1886, 58 N.Y.S.3d 788 [4th Dept. 2017];  see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ).  To the extent that defendant's contention regarding ineffective assistance of counsel is based upon matters outside the record, it is not properly before us and must be raised by way of a motion pursuant to CPL article 440 (see People v. Mulcahy, 155 A.D.3d 1594, 1594–1595, 66 N.Y.S.3d 755 [4th Dept. 2017], lv denied 30 N.Y.3d 1107, 77 N.Y.S.3d 6, 101 N.E.3d 392 [2018];  People v. Jones, 147 A.D.3d 1521, 1521–1522, 47 N.Y.S.3d 621 [4th Dept. 2017], lv denied 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017] ).

Finally, defendant's valid waiver of the right to appeal encompasses her challenge to the severity of the sentence (see Davis, 129 A.D.3d at 1615, 11 N.Y.S.3d 778;  see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).