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

665
KA 12-00688
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GLENN E. SIMS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GLENN E. SIMS, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered February 21, 2012. The judgment
convicted defendant, upon his plea of guilty, of course of sexual
conduct against a child in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of course of sexual conduct against a child in
the first degree (Penal Law § 130.75 [1] [b]). We agree with
defendant that the waiver of the right to appeal is invalid inasmuch
as the purported waiver was obtained at sentencing, and there is no
indication that Supreme Court obtained a knowing and voluntary waiver
of that right at the time of the plea (see People v Pieper, 104 AD3d
1225, 1225). We nevertheless reject defendant’s contention that the
sentence is unduly harsh or severe.

     Defendant’s contention in his pro se supplemental brief that the
indictment was defective for failing to give sufficient specificity
with respect to the time frames for the alleged crimes is waived by
his plea of guilty (see CPL 200.50 [7] [a]; People v Young, 100 AD3d
1186, 1187-1188, lv denied 21 NY3d 1021; People v Riley, 267 AD2d
1072, 1073; cf. People v Iannone, 45 NY2d 589, 600). In any event,
“[w]here, as here, [a] crime charged in the indictment is a continuing
offense, ‘the usual requirements of specificity with respect to time
do not apply’ ” (People v Errington, 121 AD3d 1553, 1554), and we
conclude that the time frames recited in the indictment were specific
enough to satisfy the requirements of due process (see id.; People v
Muhina, 66 AD3d 1397, 1398, lv denied 13 NY3d 909). Defendant’s
                                 -2-                           665
                                                         KA 12-00688

further contention in his pro se supplemental brief that he was denied
effective assistance of counsel is also without merit. Defendant made
“ ‘no showing that the plea bargaining process was infected by any
allegedly ineffective assistance or that [he] entered the plea because
of his attorney[’]s allegedly poor performance’ ” (People v Granger,
96 AD3d 1669, 1670, lv denied 19 NY3d 1102; see People v Gerald, 103
AD3d 1249, 1250-1251). Finally, we reject defendant’s contention in
his pro se supplemental brief that the court erred in failing to
listen to his statements in recorded phone calls before issuing its
decision after the Huntley hearing. Inasmuch as there was no showing
that the content of defendant’s statements was relevant to the issue
of voluntariness, there was no error (see People v Rutley, 57 AD3d
1497, 1497, lv denied 12 NY3d 821).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
