PEOPLE v. ZULIANI

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The PEOPLE of the State of New York, Respondent, v. Roger P. ZULIANI, Defendant-Appellant.

Decided: December 30, 2009

PRESENT: SCUDDER, P.J., FAHEY, CARNI, AND GORSKI, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant-Appellant. Edward M. Sharkey, District Attorney, Little Valley, for Respondent.

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02[1] ) and driving while intoxicated (Vehicle and Traffic Law § 1192[3] ). The record establishes that defendant knowingly, intelligently, and voluntarily waived his right to appeal, and that valid waiver encompasses his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46), as well as his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Bailey, 49 A.D.3d 1258, 852 N.Y.S.2d 892, lv denied 10 N.Y.3d 932, 862 N.Y.S.2d 338, 892 N.E.2d 404).

Although the contention of defendant that his plea was not voluntarily, knowingly, and intelligently entered survives his waiver of the right to appeal, defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review (see People v. Harris, 269 A.D.2d 839, 703 N.Y.S.2d 765). We reject defendant's contention that this is one of those rare cases in which the exception to the preservation requirement applies (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). After defendant advised County Court that he had taken prescription pain medication, the court conducted an inquiry that “was sufficient to ensure that the plea was voluntary,” and defendant advised the court that he was thinking clearly and understood the proceedings (People v. Brown, 305 A.D.2d 1068, 1069, 759 N.Y.S.2d 830, lv denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481).

Defendant further contends that he received ineffective assistance of counsel based on defense counsel's failure to request an adjournment until defendant was no longer taking pain medication. That contention survives the guilty plea and the valid waiver of the right to appeal “only to the extent that defendant contends that his plea was infected by the alleged ineffective assistance” (People v. Nieves, 299 A.D.2d 888, 889, 750 N.Y.S.2d 677, lv denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286; see People v. Kapp, 59 AD3d 973, lv denied 12 NY3d 818), and we conclude that defendant's contention is lacking in merit. “[D]efendant receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265; see Nieves, 299 A.D.2d 888, 750 N.Y.S.2d 677).

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

MEMORANDUM: