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

1075
KA 13-00441
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RIAN T. SMITH, DEFENDANT-APPELLANT.


PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.

RIAN T. SMITH, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Angelo J.
Morinello, A.J.), rendered November 29, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the fifth 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 criminal possession of a controlled
substance in the fifth degree (Penal Law § 220.06 [5]). We reject
defendant’s contention that his waiver of the right to appeal was
invalid. Here, County Court’s plea colloquy and defendant’s execution
of a written waiver of the right to appeal demonstrate that
defendant’s “ ‘waiver of the right to appeal was a knowing and
voluntary choice’ ” (People v Brown, 296 AD2d 860, 860, lv denied 98
NY2d 767; see People v Kemp, 255 AD2d 397, 397). In addition, we
conclude that defendant was “adequately apprised . . . 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]). We further
conclude that defendant’s valid waiver of the right to appeal
encompasses his challenge to the severity of the sentence (see People
v Lococo, 92 NY2d 825, 827; People v Raynor, 107 AD3d 1567, 1568, lv
denied 22 NY3d 1090).

     To the extent that defendant contends in his main brief that
defense counsel was ineffective for failing to challenge the search
warrant, we note that such contention “does not survive [his] plea or
[his] valid waiver of the right to appeal because [he] failed to
demonstrate that the plea bargaining process was infected by [the]
                                 -2-                          1075
                                                         KA 13-00441

allegedly ineffective assistance or that [he] entered the plea because
of [his] attorney[’s] allegedly poor performance” (People v Gleen, 73
AD3d 1443, 1444, lv denied 15 NY3d 773 [internal quotation marks
omitted]; see People v Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d
912). To the extent that defendant contends in his pro se
supplemental brief that the plea bargaining process was infected by
defense counsel’s allegedly ineffective assistance, we further note
that defendant’s specific claims, i.e., that defense counsel failed to
investigate and failed to make a suppression motion, are “not properly
before us because [they] involve[] matters outside the record on
appeal and thus must be raised by way of a motion pursuant to CPL
article 440” (People v Monaghan, 101 AD3d 1686, 1686, lv denied 23
NY3d 965; see People v Johnson, 81 AD3d 1428, 1428, lv denied 16 NY3d
896).

     Finally, we reject defendant’s contention that the court erred in
denying his motion to withdraw his guilty plea without an evidentiary
hearing. “ ‘The decision to permit a defendant to withdraw a guilty
plea rests in the sound discretion of the court’ ” (People v Falaro,
284 AD2d 972, 972; see People v Burroughs, 224 AD2d 1034, 1034, lv
denied 88 NY2d 845), and where, as here, a defendant’s motion to
withdraw is “patently insufficient on its face,” the court may
summarily deny the motion (People v Mitchell, 21 NY3d 964, 967).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
