PEOPLE v. DIXON

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

The PEOPLE, etc., respondent, v. Brandon DIXON, appellant.

Decided: June 26, 2007

ROBERT W. SCHMIDT, J.P., STEPHEN G. CRANE, GABRIEL M. KRAUSMAN, and THOMAS A. DICKERSON, JJ. Salvatore C. Adamo, New York, N.Y., for appellant. Michael E. Bongiorno, District Attorney, New City, N.Y. (Argiro Kosmetatos and Elana L. Yeger of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered September 14, 2005, convicting him of murder in the second degree and robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his contention that his plea of guilty and waiver of the right to appeal were not knowingly, voluntarily, and intelligently made (see CPL 470.05[2];  People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Mitchell, 22 A.D.3d 769, 802 N.Y.S.2d 372;  People v. Hull, 300 A.D.2d 411, 751 N.Y.S.2d 747).   In any event, the defendant's claim that his plea and waiver were not knowingly, voluntarily, and intelligently made because the court failed to specifically enumerate all of the rights to which he was entitled is without merit (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222;  People v. Watson, 19 A.D.3d 518, 798 N.Y.S.2d 471).   The Court of Appeals has consistently held that there is no “uniform mandatory catechism of pleading defendants” (People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687;  see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797;  People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646).  “Moreover, the defendant acknowledged that he discussed the plea and waiver with his attorney, executed the waiver in open court, and indicated his understanding of the nature and consequences of the rights that he waived” (People v. Silent, 37 A.D.3d 625, 625, 831 N.Y.S.2d 194;  see People v. Reynolds, 27 A.D.3d 668, 669, 811 N.Y.S.2d 128;  People v. Torres, 24 A.D.3d 692, 808 N.Y.S.2d 380).

 In addition, the defendant's waiver of his right to appeal precludes review of his contention that he was denied the effective assistance of counsel, except to the extent that it affected the voluntariness of his plea (see People v. Demosthene, 2 A.D.3d 874, 769 N.Y.S.2d 746;  People v. Herring, 274 A.D.2d 525, 526, 712 N.Y.S.2d 388;  People v. Porter, 268 A.D.2d 603, 704 N.Y.S.2d 85).   As indicated, the plea was knowingly, voluntarily, and intelligently made.

 Further, the defendant's valid waiver of his right to appeal precludes review of his challenge to the sentence as excessive (see People v. Lopez, 6 N.Y.3d 248, 253, 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;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

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