People v Williams |
2012 NY Slip Op 00567 [91 AD3d 1299] |
January 31, 2012 |
Appellate Division, Fourth Department |
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law ยง 431. |
As corrected through Wednesday, February 29, 2012 |
The People of the State of New York,
Respondent, v Adrienne Williams, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), for
respondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),
rendered May 27, 2009. The judgment convicted defendant, upon her plea of guilty, of grand
larceny in the fourth degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a plea of guilty
of two counts of grand larceny in the fourth degree (Penal Law 155.30 [1]). Defendant's
challenge to the factual sufficiency of the plea allocution is encompassed by her waiver of the
right to appeal (see People v Jorge N.T., 70 AD3d 1456, 1457 [2010], lv denied 14 NY3d 889
[2010]), the validity of which she does not contest on appeal. In any event, defendant's challenge
is also unpreserved for our review inasmuch as she did not move to withdraw her plea or to
vacate the judgment of conviction on that ground (see People v Lopez, 71 NY2d 662, 665
[1988]; People v Moorer, 63 AD3d 1590 [2009], lv denied 13 NY3d 837 [2009]). Although the
waiver by defendant of the right to appeal does not encompass her contention that the plea was
not knowingly, intelligently or voluntarily entered, she failed to preserve that contention for our
review by failing to move to withdraw the plea or to vacate the judgment of conviction on that
ground (see People v Montanez, 89 AD3d 1409 [2011]; People v Thomas, 77 AD3d 1325, 1326
[2010], lv denied 16 NY3d 800 [2011]). This case does not fall within the rare exception to the
preservation requirement because the plea colloquy did not "clearly cast[ ] significant doubt upon
the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea" (Lopez, 71
NY2d at 666). To the extent that defendant's contention that she was denied effective assistance
of counsel survives her guilty plea and waiver of the right to appeal (see People v Bryant, 87
AD3d 1270, 1271-1272 [2011]), we conclude that it is without merit (see generally People v
Ford, 86 NY2d 397, 404 [1995]; People v Jermain, 56 AD3d 1165 [2008], lv denied 11 NY3d
926 [2009]). Finally, County Court did not err in failing sua sponte to order a competency
hearing (see Bryant, 87 AD3d at 1271-1272; Jermain, 56 AD3d at 1165). We note, however, that
the certificate of conviction incorrectly recites that defendant was convicted of one count of
grand larceny in the fourth degree when she in fact was convicted of two such counts. The
certificate of conviction must therefore be amended accordingly (see People v Saxton, 32 AD3d
1286 [2006]). Present Smith, J.P., Peradotto, Lindley, Sconiers and Gorski, JJ.