PEOPLE v. RIZEK

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Ricky RIZEK, Defendant-Appellant.  (Appeal No. 1.)

Decided: July 02, 2009

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND GREEN, JJ. Thomas E. Andruschat, East Aurora, for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

 In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[3] ) and attempted rape in the first degree (§§ 110.00, 130.35[1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree (§ 160.10[1] ).   Contrary to the contention of defendant in both appeals, his waivers of the right to appeal were voluntarily, knowingly, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416).   We conclude, however, that the waivers of the right to appeal do not encompass defendant's challenges to the severity of the sentence in each appeal because defendant waived his right to appeal before County Court advised him of the maximum sentence he could receive (see People v. Martinez, 55 A.D.3d 1334, 864 N.Y.S.2d 652, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446;  People v. Mingo, 38 A.D.3d 1270, 832 N.Y.S.2d 721).   We nevertheless conclude that the sentence in each appeal is not unduly harsh or severe.   Finally, the further contention of defendant in appeal No. 1 that he was denied effective assistance of counsel “does not survive his guilty plea or his waiver of the right to appeal because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” (People v. Dean, 48 A.D.3d 1244, 1245, 852 N.Y.S.2d 545, lv. denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [internal quotation marks omitted] ).

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

MEMORANDUM: