           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
29
KA 09-01440
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

WILLIAM J. COKE, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. COKE, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Peter L.
Broderick, Sr., J.), rendered April 25, 2002. The judgment convicted
defendant, upon his plea of guilty, of sodomy in the third 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 sodomy in the third degree (Penal Law
former § 130.40 [2]). We reject the contention of defendant that his
waiver of the right to appeal was invalid. County Court “made clear
that the waiver of the right to appeal was a condition of [the] plea,
not a consequence thereof, and the record reflects that defendant
understood that the waiver of the right to appeal was ‘separate and
distinct from those rights automatically forfeited upon a plea of
guilty’ ” (People v Graham, 77 AD3d 1439, 1439, quoting People v
Lopez, 6 NY3d 248, 256). Defendant’s challenge to the severity of the
sentence is encompassed by the valid waiver of the right to appeal
(see People v Hidalgo, 91 NY2d 733, 737). To the extent that the
contention of defendant in his pro se supplemental brief that he was
denied effective assistance of counsel survives the plea and the
waiver of the right to appeal (see People v Cloyd, 78 AD3d 1669;
People v Pratt, 77 AD3d 1337), we conclude that his contention is
lacking in merit (see generally People v Ford, 86 NY2d 397, 404). We
have reviewed the remaining contentions of defendant in his pro se
supplemental brief and conclude that they are also without merit.


Entered:   February 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
