PEOPLE v. FERRERI

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. John R. FERRERI, Appellant.

Decided: April 20, 2000

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and MUGGLIN, JJ. Jerald Rosenthal, Ghent, for appellant. Stephen F. Lungen, District Attorney (Bonnie M. Mitzner of counsel), Monticello, for respondent.

Appeal from a judgment of the County Court of Sullivan County (Ledina, J.), rendered June 29, 1998, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Defendant entered a counseled plea of guilty to a single count of burglary in the second degree in full satisfaction of a three-count indictment and any uncharged burglaries that he may have committed in Sullivan County.   Defendant's plea of guilty was entered with the express understanding that he would be sentenced as a second felony offender to a prison term of nine years, to run concurrently with a seven-year prison term defendant was serving in Westchester County, and that he would also waive his right to appeal.   Defendant was sentenced and entered a waiver of his right to appeal in accordance with the plea bargain;  he now appeals.

 We affirm.   In light of defendant's failure to move to withdraw his guilty plea or to vacate the judgment of conviction rendered thereon, his challenge to the voluntariness of his plea or the effectiveness of his counsel are unpreserved for our review (see, People v. Doty, 267 A.D.2d 616, 699 N.Y.S.2d 761;  People v. Johnson, 267 A.D.2d 609, 699 N.Y.S.2d 756;  People v. Smith, 248 A.D.2d 891, 669 N.Y.S.2d 986, lv. denied 92 N.Y.2d 906, 680 N.Y.S.2d 70, 702 N.E.2d 855).   Nevertheless, were we to consider the merits, we would find his claims unpersuasive.

 The comprehensive plea colloquy demonstrates that defendant entered a knowing, voluntary and intelligent guilty plea and waiver of appeal (see, People v. Shaw, 261 A.D.2d 648, 690 N.Y.S.2d 151;  People v. Johnson, 243 A.D.2d 997, 663 N.Y.S.2d 910, lv. denied 91 N.Y.2d 927, 670 N.Y.S.2d 408, 693 N.E.2d 755).   Moreover, defendant received an advantageous plea bargain, stated during the plea allocution that he was satisfied with his counsel's performance, and nothing in the record casts doubt on the apparent effectiveness of counsel (see, People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;  People v. Smith, 263 A.D.2d 676, 677, 694 N.Y.S.2d 201, lv. denied 93 N.Y.2d 1027, 697 N.Y.S.2d 586, 719 N.E.2d 947).   Finally, defendant received the sentence he bargained for, which we conclude was neither harsh nor excessive (see, People v. Ennis, 254 A.D.2d 642, 679 N.Y.S.2d 349, lv. denied 92 N.Y.2d 1048, 685 N.Y.S.2d 426, 708 N.E.2d 183;  People v. Poleto, 252 A.D.2d 668, 675 N.Y.S.2d 915, lv. denied 92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282;  People v. Leibach, 249 A.D.2d 636, 670 N.Y.S.2d 988, lv. denied 92 N.Y.2d 880, 678 N.Y.S.2d 27, 700 N.E.2d 565).   Defendant's remaining contentions have been reviewed and found to be meritless.

ORDERED that the judgment is affirmed.

MERCURE, J.

CARDONA, P.J., CREW III, PETERS and MUGGLIN, JJ., concur.

Copied to clipboard