PEOPLE v. GRAFTON (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), rendered May 3, 2021, convicting him of criminal possession of a controlled substance in the third degree and assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's waiver of the right to appeal precludes review of his contention that the procedure used to adjudicate him a second felony offender was defective, inasmuch as this challenge goes to the Supreme Court's compliance with procedures to determine the defendant's predicate felony status, rather than the legality of the sentence itself (see People v. Leon, 200 A.D.3d 717, 717, 154 N.Y.S.3d 875;  People v. Meyers, 172 A.D.3d 1236, 1237, 98 N.Y.S.3d 879).

The defendant's arguments related to the voluntariness of his plea survive his valid appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Ospina, 175 A.D.3d 513, 513, 107 N.Y.S.3d 59).  The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent due to the purported factual insufficiency of the plea allocution, and because it was allegedly coerced, is unpreserved for appellate review because he did not move to withdraw the plea on these grounds (see People v. Principato, 194 A.D.3d 851, 851, 147 N.Y.S.3d 135;  People v. Adeghe, 185 A.D.3d 952, 953, 125 N.Y.S.3d 739).  Contrary to the defendant's contention, the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Principato, 194 A.D.3d at 851, 147 N.Y.S.3d 135).  In any event, the defendant's contention is without merit, and the record as a whole demonstrates that his plea of guilty was knowing, voluntary, and intelligent (see People v. Ospina, 175 A.D.3d at 514, 107 N.Y.S.3d 59).

The defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Augustine, 208 A.D.3d 678, 679, 171 N.Y.S.3d 898).  To the extent that the defendant's ineffective assistance of counsel claim survives his valid waiver of the right to appeal, the claim is without merit (see People v. Moore, 140 A.D.3d 1091, 1092, 34 N.Y.S.3d 147).

BRATHWAITE NELSON, J.P., MALTESE, CHRISTOPHER and LOVE, JJ., concur.