PEOPLE v. PORTILLO (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Anthony Senft, Jr., J.), rendered April 4, 2022, convicting him of conspiracy in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Carman, 221 A.D.3d 613, 197 N.Y.S.3d 337;  People v. Luna, 196 A.D.3d 510, 147 N.Y.S.3d 421).

The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the County Court (see People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617;  People v. Brown, 170 A.D.3d 878, 879, 96 N.Y.S.3d 110), and the exception to the preservation rule is inapplicable in this case (see People v. Anderson, 223 A.D.3d 912, 202 N.Y.S.3d 458;  People v. Kaye, 190 A.D.3d 767, 768, 135 N.Y.S.3d 854).  In any event, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered.

The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the County Court erred by, in effect, denying his motion for substitution of new assigned counsel, except to the extent that his claim implicates the voluntariness of his plea (see People v. McErlean, 149 A.D.3d 872, 873, 51 N.Y.S.3d 616).  To the extent that the defendant argues that the, in effect, denial of his motion for substitution of counsel implicated the voluntariness of his plea, the record does not provide a basis to conclude that the defendant's motion was based on specific factual allegations of serious complaints about his counsel (see People v. Fredericks, 43 N.Y.3d 551, 556–557, 238 N.Y.S.3d 133, 264 N.E.3d 1264;  People v. Parker, 160 A.D.3d 990, 991, 72 N.Y.S.3d 467;  People v. Ward, 121 A.D.3d 1026, 1027, 994 N.Y.S.2d 675;  People v. Cheeks, 107 A.D.3d 1013, 1014, 966 N.Y.S.2d 893).  Consequently, the court was not obligated to inquire further, and the motion was, in effect, properly denied (see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283;  People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768).

The defendant's valid waiver of his right to appeal also precludes appellate review of his contention that he was deprived of the effective assistance of counsel on the ground that defense counsel expressed an adverse position to the defendant during the sentencing proceeding, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Hendrix, 172 A.D.3d 1224, 1225, 98 N.Y.S.3d 889;  People v. Kovalsky, 166 A.D.3d 900, 901, 85 N.Y.S.3d 889).  To the extent that the defendant's ineffective assistance of counsel claim survives his valid waiver of the right to appeal, his contention is without merit (see People v. Fredericks, 43 N.Y.3d at 559–560, 238 N.Y.S.3d 133, 264 N.E.3d 1264;  People v. Pointer, 218 A.D.3d 499, 500, 192 N.Y.S.3d 239).

Finally, the defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), as well as his contention that the sentence violated his constitutional rights against cruel and unusual punishment (see People v. Escobargarcia, 237 A.D.3d 1221, 1222, 231 N.Y.S.3d 627).

GENOVESI, J.P., CHRISTOPHER, WAN and VENTURA, JJ., concur.