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

415
KA 11-00213
PRESENT: SMITH, J.P., LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LEON R. WOODS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LEON R. WOODS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered September 3, 2010. The judgment convicted
defendant, upon his plea of guilty, of assault in the first 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 assault in the first degree (Penal Law §
120.10 [1]), defendant contends in his pro se supplemental brief that
his waiver of the right to appeal is not valid. We reject that
contention. Defendant’s “responses during the plea colloquy and his
execution of a written waiver of the right to appeal establish that he
intelligently, knowingly and voluntarily waived his right to appeal”
(People v Rumsey, 105 AD3d 1448, 1449, lv denied 21 NY3d 1019).
Contrary to defendant’s contention, the record establishes that he
“ ‘understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty’ ” (People
v Jones, 96 AD3d 1637, 1637, lv denied 19 NY3d 1103, quoting People v
Lopez, 6 NY3d 248, 256).

     Defendant’s contention in his main brief that his plea was not
knowingly, voluntarily and intelligently entered survives his valid
waiver of the right to appeal (see People v Theall, 109 AD3d 1107,
1107-1108, lv denied 22 NY3d 1159), but defendant failed to preserve
that contention for our review by moving to withdraw his plea or to
vacate the judgment of conviction (see People v Guantero, 100 AD3d
1386, 1387, lv denied 21 NY3d 1004; People v McKeon, 78 AD3d 1617,
1618, lv denied 16 NY3d 799). Contrary to defendant’s contention,
“[t]his is not one of those rare cases ‘where the defendant’s
                                 -2-                           415
                                                         KA 11-00213

recitation of the facts underlying the crime[] pleaded to clearly
casts significant doubt upon the defendant’s guilt or otherwise calls
into question the voluntariness of the plea[]’ to obviate the
preservation requirement” (People v Rodriguez, 17 AD3d 1127, 1129, lv
denied 5 NY3d 768, quoting People v Lopez, 71 NY2d 662, 666).
“Although the initial statements of defendant during the factual
allocution may have negated the essential element of his intent to
cause [serious physical injury], his further statements removed any
doubt regarding that intent” (People v Trinidad, 23 AD3d 1060, 1061,
lv denied 6 NY3d 760; see Theall, 109 AD3d at 1108).

     Defendant’s further contention in his pro se supplemental brief
that he was denied effective assistance of counsel “does not survive
the plea or the waiver by defendant 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’ ” (People v Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d
912). Finally, although defendant’s valid waiver of the right to
appeal does not encompass his challenge in his pro se supplemental
brief to the severity of his sentence inasmuch as County Court “failed
to advise defendant of the potential periods of incarceration or the
potential maximum term of incarceration” (People v Kelly, 96 AD3d
1700, 1700), that challenge lacks merit.




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
