PEOPLE v. MORALES (2009)

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered October 7, 2008, (1) upon a verdict convicting defendant of the crime of burglary in the third degree and (2) convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree.

On February 27, 2008, a nine-count indictment was filed charging defendant with, among other things, burglary in the third degree.   This charge arose from an incident that occurred in January 2008 in which defendant was alleged to have knowingly entered a building on Pine Street in the City of Albany with the intent to commit a crime therein.   After a jury trial, defendant was found guilty of one count of burglary in the third degree.¹

Later, defendant agreed to plead guilty to one count of criminal possession of stolen property in the fourth degree in satisfaction of charges contained in an unrelated indictment that involved an incident that occurred in October 2007.   In return for this plea, it was agreed that defendant would not be sentenced as a persistent felony offender and that the sentences to be imposed on his convictions for criminal possession of stolen property and burglary would not exceed 1 1/2 to 3 years and 3 1/2 to 7 years, respectively.   Significantly, defendant also agreed to waive his right to appeal not only from his judgment of conviction for criminal possession of stolen property, but also from his judgment of conviction after trial of the crime of burglary.   Defendant was ultimately sentenced as a second felony offender to consecutive prison terms of 1 1/2 to 3 years and 3 1/2 to 7 years for his convictions of criminal possession of stolen property in the fourth degree and burglary in the third degree, respectively.   Defendant now appeals, challenging only his burglary conviction.

Initially, we note that “ ‘[t]here is nothing offensive, constitutionally, statutorily or as a matter of policy, in permitting a defendant to waive [his or her] rights to appeal from judgments of more than one conviction ․ in situations such as this, irrespective of whether [the negotiated] plea stems from charges closely connected to those of which defendant was found guilty after trial’ ” (People v. Cipriani, 61 A.D.3d 1214, 1215, 876 N.Y.S.2d 775 [2009], lv. denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009], quoting People v. Holmes, 294 A.D.2d 871, 871-872, 740 N.Y.S.2d 919 [2002], lv. denied 98 N.Y.2d 730, 749 N.Y.S.2d 480, 779 N.E.2d 191 [2002];  see People v. Povoski, 55 A.D.3d 1221, 1221-1222, 864 N.Y.S.2d 586 [2008], lv. denied 11 N.Y.3d 929, 874 N.Y.S.2d 14, 902 N.E.2d 448 [2009] ).   In addition to explaining to defendant the ramifications of waiving his right to appeal, and that it was a right that was “separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), County Court clearly and unambiguously advised defendant that the waiver covered not simply his guilty plea to criminal possession of stolen property, but also his conviction for burglary obtained after trial (compare People v. Rosario, 24 A.D.3d 199, 199, 806 N.Y.S.2d 479 [2005], lv. denied 6 N.Y.3d 897, 817 N.Y.S.2d 632, 850 N.E.2d 679 [2006] ).   It reiterated, and defendant in the presence of counsel indicated that he understood, that he was giving up the right “to appeal the conviction and sentence to be imposed here as well as on the conviction and sentence with regard to the trial which was concluded a week ago.”   In return, defendant received a commitment that he would not be sentenced as a persistent felony offender.   Under all of the circumstances, we are of the view that defendant made an intelligent and voluntary decision to waive his right to appeal both convictions and did so after having a full and fair opportunity to confer with counsel.

Given defendant's valid waiver of his right to appeal, we cannot reach his claims that his sentence was harsh or excessive (see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  People v. Barrier, 7 A.D.3d 885, 886, 776 N.Y.S.2d 374 [2004], lv. denied 3 N.Y.3d 670, 784 N.Y.S.2d 9, 817 N.E.2d 827 [2004] ), his challenge to the evidentiary support for the jury's verdict or his claim that County Court committed reversible error in admitting evidence of his involvement in other criminal activity (see People v. Lee, 50 A.D.3d 702, 703, 854 N.Y.S.2d 314 [2008], lv. denied 10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409 [2008];  People v. Dickerson, 309 A.D.2d 966, 967, 766 N.Y.S.2d 138 [2003], lv. denied 1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364 [2004] ).   Finally, defendant's claim that he was denied the effective assistance of counsel involves claims regarding counsel's conduct during the trial and does not implicate the voluntariness of defendant's decision to enter a guilty plea or waive his right to appeal and, therefore, this claim is also foreclosed (see People v. Cipriani, 61 A.D.3d at 1216, 876 N.Y.S.2d 775).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant was acquitted of the eight other counts in the indictment that involved a separate burglary that occurred at another time and at a different location.

KAVANAGH, J.

PETERS, J.P., ROSE, KANE and McCARTHY, JJ., concur.