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

697
KA 13-00863
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

SCOTT ARNEY, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey,
J.), rendered January 7, 2013. The judgment convicted defendant, upon
his plea of guilty, of assault in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him upon
a plea of guilty of assault in the second degree (Penal Law ' 120.05 [1]).
 We reject defendant=s contention that his waiver of the right to appeal
was invalid. ACounty Court=s plea colloquy, together with the written
waiver of the right to appeal, adequately apprised defendant that the
right to appeal is separate and distinct from those rights automatically
forfeited upon a plea of guilty@ (People v Buske, 87 AD3d 1354, 1354,
lv denied 18 NY3d 882 [internal quotation marks omitted]). Defendant=s
further contention that Athe court erred in failing sua sponte to inquire
into his state of intoxication at the time of the commission of the crime
is actually a challenge to the factual sufficiency of the plea allocution,
and it is well settled that defendant=s valid waiver of the right to appeal
encompasses that challenge@ (People v Zimmerman, 100 AD3d 1360, 1361,
lv denied 20 NY3d 1015). In any event, A[t]he issue of intoxication was
raised by [defendant] for the first time in the presentence interview,
and thus the court had no duty to make further inquiry at the time of
the plea based on information in the presentence report@ (People v Jordan,
292 AD2d 860, 861, lv denied 98 NY2d 698; see People v Espinal, 99 AD3d
435, 435, lv denied 20 NY3d 986). Because nothing in defendant=s plea
allocution cast doubt on the voluntariness of his plea and inasmuch as
defendant made no motion to withdraw his plea, defendant=s contention is
unpreserved for our review (see People v Lopez, 71 NY2d 662, 665).

     Although defendant=s further contention that he is innocent survives
his valid waiver of the right to appeal (see People v Lewandowski, 82
AD3d 1602, 1602; see also People v Franco, 104 AD3d 790, 790; People v
                                    -2-                                 697
                                                                KA 13-00863

Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d 912), that contention is
also unpreserved for our review (see Lewandowski, 82 AD3d at 1602). In
any event, defendant=s assertion of innocence is conclusory and belied
by his statements during the plea colloquy (see id.; Wright, 66 AD3d at
1334).

     We further conclude that the contention of defendant that he was
denied effective assistance of counsel Adoes not survive the plea or his
valid waiver of the right to appeal because defendant >failed to demonstrate
that the plea bargaining process was infected by [the] allegedly
ineffective assistance or that defendant entered the plea because of [his]
attorney[=s] allegedly poor performance= @ (Lewandowski, 82 AD3d at
1602-1603). A >In the context of a guilty plea, a defendant has been
afforded meaningful representation when he or she receives an advantageous
plea and nothing in the record casts doubt on the apparent effectiveness
of counsel= @ (People v Liggins, 82 AD3d 1625, 1625, lv denied 17 NY3d
797, quoting People v Ford, 86 NY2d 397, 404). Here, defendant failed
to assert his innocence or raise a possible intoxication defense at
sentencing when given the opportunity to address the court and, given
the favorable plea negotiated by defense counsel, which significantly
reduced his sentencing exposure, we conclude that defendant was afforded
meaningful representation (see People v Neil, 112 AD3d 1335, 1336).

     Finally, we agree with defendant that Athe waiver of the right to
appeal does not encompass his challenge to the severity of the sentence
because >no mention was made on the record during the course of the
allocution concerning the waiver of defendant=s right to appeal= with
respect to his conviction that he was also waiving his right to appeal
any issue concerning the severity of the sentence@ (People v Peterson,
111 AD3d 1412, 1412; see People v Maracle, 19 NY3d 925, 927-928; People
v Milon, 114 AD3d 1130, 1131). Nor is the deficiency in the allocution
cured by defendant=s written waiver of the right to appeal (see People
v Ramos-Roman, 112 AD3d 1364, 1364; People v Pimentel, 108 AD3d 861, 862,
lv denied 21 NY3d 1076; see generally Maracle, 19 NY3d at 927-928). We
nevertheless conclude that the sentence is not unduly harsh or severe.




Entered:   August 8, 2014                           Frances E. Cafarell
                                                    Clerk of the Court
