PEOPLE v. SALIANI (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D. Cohen, J.), rendered June 29, 2016, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently made is without merit (see People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60;  People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344).  The defendant's contention with respect to the voluntariness of his plea survives a valid waiver of the right to appeal (see People v. Fontanet, 126 A.D.3d 723, 723, 2 N.Y.S.3d 371;  People v. Rodriguez–Ovalles, 74 A.D.3d 1368, 1368, 903 N.Y.S.2d 258).  However, that contention is unpreserved for appellate review, since the defendant did not move to withdraw his plea (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Magnotta, 137 A.D.3d 1303, 1303, 27 N.Y.S.3d 403;  People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917).  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. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346;  People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Fontanet, 126 A.D.3d at 723, 2 N.Y.S.3d 371).  In any event, the record as a whole demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199;  People v. Sulaiman, 134 A.D.3d 860, 861, 20 N.Y.S.3d 650).

By pleading guilty, the defendant forfeited the review of any claims of ineffective assistance of counsel that do not directly involve the negotiation process and sentence (see People v. Moshier, 110 A.D.3d 832, 833, 972 N.Y.S.2d 675;  People v. Rodriguez–Ovalles, 74 A.D.3d at 1368–1369, 903 N.Y.S.2d 258).  To the extent that his claims can be reviewed, the defendant was afforded meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The defendant's valid waiver of his right to appeal precludes review of his contentions that the procedure used to adjudicate him a persistent violent felony offender was defective (see People v. Mallahan, 119 A.D.3d 875, 876, 989 N.Y.S.2d 367).

DILLON, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.