PEOPLE v. EPPS

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

The PEOPLE of the State of New York, Respondent, v. Erskin EPPS, Appellant.

Decided: November 25, 1998

Before CARDONA, P.J., MERCURE, WHITE, SPAIN and CARPINELLO, JJ. Carol M. Dillon, Amsterdam, for appellant. Andrew G. Schrader, District Attorney, Malone, for respondent.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), entered October 28, 1996, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant, a prison inmate, pleaded guilty to attempted promoting prison contraband in the first degree and waived his right to appeal all issues except for sentencing.   Defendant was sentenced, as a second felony offender, according to the plea agreement to a prison term of 1 1/212 to 3 years to be served consecutively to the prison term he was then serving.   Defendant appeals arguing that, inter alia, the waiver of his right to appeal was not made knowingly, intelligently or voluntarily, he was denied effective assistance of counsel and the statute of which he was convicted was unconstitutional.

 Initially, we note that defendant's contentions that his waiver of his right to appeal was not voluntarily, knowingly and intelligently made and that he was denied effective assistance of counsel survive the waiver of his right to appeal inasmuch as the alleged deficiencies impacted his plea (see, People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Conyers, 227 A.D.2d 793, 794, 642 N.Y.S.2d 450, lv. denied 88 N.Y.2d 982, 649 N.Y.S.2d 389, 672 N.E.2d 615).   Defendant's claims, however, have not been preserved for our review in light of defendant's failure to make either a motion to vacate or withdraw his plea (see, People v. Chappelle, 250 A.D.2d 878, 879, 673 N.Y.S.2d 751, 752, lv. denied 92 N.Y.2d 894, 680 N.Y.S.2d 58, 702 N.E.2d 843;  People v. Johnson, 243 A.D.2d 997, 663 N.Y.S.2d 910, lv. denied 91 N.Y.2d 926, 670 N.Y.S.2d 408, 693 N.E.2d 755).   In any event, a review of the record indicates that defendant knowingly, intelligently and voluntarily waived his right to appeal after County Court advised him of his rights and the consequences of the waiver of his right to appeal (see, People v. Jackson, 245 A.D.2d 964, 667 N.Y.S.2d 133, lv. denied 91 A.D.2d 926, 457 N.Y.S.2d 814;  People v. Ubrich, 245 A.D.2d 886, 666 N.Y.S.2d 825, lv. denied 91 N.Y.2d 945, 671 N.Y.S.2d 725, 694 N.E.2d 894).   Moreover, as a whole, defendant received meaningful representation from which he received the benefit of an advantageous plea agreement (see, People v. Brunner, 244 A.D.2d 831, 666 N.Y.S.2d 247).

In regard to defendant's contention that Penal Law §§ 205.00 and 205.25 are unconstitutional, this court has previously held that the statutes are neither unconstitutionally vague (see, People v. Rivera, 221 A.D.2d 380, 633 N.Y.S.2d 507, lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 206, 664 N.E.2d 1269;  People v. Hughes, 212 A.D.2d 910, 911, 623 N.Y.S.2d 167;  People v. Watson, 162 A.D.2d 1015, 557 N.Y.S.2d 803) nor unconstitutional as an improper delegation of legislative authority (see, People v. Samull, 181 A.D.2d 946, 581 N.Y.S.2d 459, lv. denied 79 N.Y.2d 1054, 584 N.Y.S.2d 1022, 596 N.E.2d 420;  People v. Palmer, 177 A.D.2d 735, 576 N.Y.S.2d 54, lv. denied 79 N.Y.2d 922, 582 N.Y.S.2d 82, 590 N.E.2d 1210;  People v. Richardson, 177 A.D.2d 735, 575 N.Y.S.2d 794, lv. denied 79 N.Y.2d 952, 583 N.Y.S.2d 206, 592 N.E.2d 814;  People v. Anderson, 127 A.D.2d 885, 512 N.Y.S.2d 646).

Defendant's remaining arguments have been reviewed and found to be either lacking in merit or unpreserved for our review in light of defendant's waiver of his right to appeal.

ORDERED that the judgment is affirmed.

CARPINELLO, J.

CARDONA, P.J., MERCURE, WHITE and SPAIN, JJ., concur.

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