        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

690
KA 11-01062
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CRYSTAPHER HAMPTON, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Elma
A. Bellini, J.), rendered March 15, 2010. The judgment convicted
defendant, upon his plea of guilty, of murder in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of murder in the second degree (Penal Law § 125.25
[1]), defendant contends that his waiver of the right to appeal is not
valid. We agree. Supreme Court did not ensure “that the defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty” (People v
Lopez, 6 NY3d 248, 256; see People v Garcia-Cruz, 138 AD3d 1414, 1414;
People v Cooper, 136 AD3d 1397, 1398, lv denied 27 NY3d 1067).
Defendant failed to preserve for our review his contention that the
plea colloquy was factually insufficient inasmuch as he failed to move
to withdraw the plea on that ground (see People v Green, 132 AD3d
1268, 1268-1269, lv denied 27 NY3d 1069; People v Lawrence, 118 AD3d
1501, 1501, lv denied 24 NY3d 1220; see generally People v Lopez, 71
NY2d 662, 666), and this case does not fall within the rare exception
to the preservation rule (see Lawrence, 118 AD3d at 1501-1502; People
v Morgan, 46 AD3d 1418, 1418, lv denied 10 NY3d 768; see generally
Lopez, 71 NY2d at 666). Notably, while defendant’s initial statements
during the colloquy cast doubt on his intent to cause the victim’s
death, the court conducted a further inquiry to ensure that the plea
was intelligently entered (see Lawrence, 118 AD3d at 1502; see
generally Lopez, 71 NY2d at 666). Defendant agreed with the court
that stabbing someone 46 times “in all likelihood is going to kill
that person” and that “it, in fact, killed [the victim].” Defendant
further admitted that he knew when he was stabbing the victim that it
would kill him, and that was “what [he] wanted to do.” In addition,
                                 -2-                           690
                                                         KA 11-01062

to the extent that defendant’s statements during the plea colloquy
raised a question regarding the defense of extreme emotional
disturbance, the court also made the appropriate further inquiry (see
People v Murphy, 43 AD3d 1276, 1277, lv denied 9 NY3d 1008).
Defendant indicated that he had discussed the possibility of that
defense with his attorney, and they decided not to pursue it.

     Defendant further contends that the plea was not knowingly,
voluntarily, and intelligently entered because the court failed to
advise him of the Boykin rights. That contention likewise is not
preserved for our review inasmuch as defendant did not move to
withdraw the plea on that ground (see People v Conceicao, 26 NY3d 375,
382; cf. People v Monroe, 98 AD3d 1293, 1294, lv denied 20 NY3d 1013).

     The court did not abuse its discretion in denying defendant’s
motion to withdraw his guilty plea. Defendant’s assertions that he
was forced to plead guilty and that he did not understand the
proceedings are belied by the statements he made during the plea
colloquy (see People v Lewicki, 118 AD3d 1328, 1329, lv denied 23 NY3d
1064). We reject defendant’s further contention that an evidentiary
hearing was warranted. Defendant was afforded a “reasonable
opportunity to present his contentions[,]” and we conclude that
nothing further was required in this case (People v Tinsley, 35 NY2d
926, 927; see People v Green, 122 AD3d 1342, 1343-1344; see generally
People v Brown, 14 NY3d 113, 116).

     We reject defendant’s contention that he did not receive
effective assistance of counsel. Defendant “received an advantageous
plea, and ‘nothing in the record casts doubt on the apparent
effectiveness of counsel’ ” (People v Shaw, 133 AD3d 1312, 1313, lv
denied 26 NY3d 1150, quoting People v Ford, 86 NY2d 397, 404; see
People v Martin, 136 AD3d 1310, 1311). Contrary to defendant’s
further contention, County Court (Connell, J.) properly determined
after a hearing that he was competent to proceed (see People v Mendez,
1 NY3d 15, 19-20; People v Wright, 107 AD3d 1398, 1399, lv denied 23
NY3d 1026). We reject defendant’s contention that County Court erred
in refusing to suppress his statement to the police. Although the
interrogation by the police occurred over a 10-hour period, defendant
was given food, drink, and cigarettes, and there were breaks in the
interrogation. In addition, at one point the detectives began
terminating the interrogation, but defendant asked them to “sit back
down and . . . talk to [him].” We conclude that, “[c]onsidering all
the circumstances, the statement was not involuntary” (People v Weeks,
15 AD3d 845, 847, lv denied 4 NY3d 892; see People v Collins, 106 AD3d
1544, 1545, lv denied 21 NY3d 1072). The sentence is not unduly harsh
or severe. We have considered defendant’s remaining contentions and
conclude that they are without merit.




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
