                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 17, 2014                     105221
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

HAROLD C. STEVENSON,
                    Appellant.
________________________________


Calendar Date:   May 27, 2014

Before:   Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

                             __________


     Elena Jaffe Tastensen, Saratoga Springs, for appellant.

      J. Anthony Jordan, District Attorney, Fort Edward (Sara E.
Fischer of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of Washington
County (McKeighan, J.), rendered June 8, 2012, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the third degree.

      Defendant pleaded guilty to criminal possession of a
controlled substance in the third degree in satisfaction of a
five-count indictment, pursuant to a plea agreement that included
an appeal waiver. After denying defendant's motion to withdraw
his plea, County Court imposed the agreed-upon term of two years
in prison with two years of postrelease supervision. Defendant
appeals.

     Initially, defendant did not effectively waive his right to
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appeal because neither the oral colloquy nor the written appeal
waiver advised defendant that the appeal waiver "is separate and
distinct from those rights automatically forfeited upon a plea of
guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v
Bradshaw, 18 NY3d 257, 264 [2011]; People v Bressard, 112 AD3d
988, 988 [2013], lv denied 22 NY3d 1137 [2014]; People v Ladieu,
105 AD3d 1265, 1265 [2013], lv denied 21 NY3d 1017 [2013]).
While defendant's claim that his guilty plea was not knowing,
voluntary and intelligent was preserved for appellate review by
his motion to vacate the plea, this claim lacks merit (see People
v Fiumefreddo, 82 NY2d 536, 543 [1993]). County Court advised
him of the terms of the plea agreement, the trial-related rights
that he was forgoing and the consequences of his plea, and he was
afforded an opportunity to consult with counsel and indicated
that he understood the plea terms and agreed to them. Defendant
then admitted to each of the allegations in count 1 of the
indictment. He was not required to recite the elements of the
crime or the underlying facts, as his unequivocal affirmative
responses to the court's questions were adequate to establish his
guilt (see People v Smith, 112 AD3d 1232, 1233 [2013], lv denied
22 NY3d 1203 [2014]).

      We reject defendant's contention that he was deprived of
the effective assistance of counsel because counsel "allowed" him
to plead guilty while his statutory speedy trial motion was
pending (see People v Caban, 5 NY3d 143, 152 [2005]). Counsel
made and pursued a motion to dismiss on statutory speedy trial
grounds (compare People v Garcia, 33 AD3d 1050, 1051-1052 [2006],
lv denied 9 NY3d 844 [2007]), and presumably weighed the
likelihood of success on that motion when advising defendant to
accept a plea to only one of five counts, with a promise of the
minimum sentence on that count. It was ultimately defendant's
decision whether to accept the plea agreement while that motion
remained undecided. To the extent that defendant raises
arguments concerning what counsel advised him with regard to
whether to enter a guilty plea and what documents defendant may
or may not have had when he entered his plea, those arguments
address matters outside the record on appeal, which are more
properly raised in a motion to vacate the judgment pursuant to
CPL article 440 (see People v Haffiz, 19 NY3d 883, 885 [2012];
People v Morey, 110 AD3d 1378, 1379-1380 [2013], lv denied 23
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NY3d 965 [2014]). By pleading guilty, aware of the fact that his
CPL 30.30 motion was pending, defendant forfeited that defense
(see People v O'Brien, 56 NY2d 1009, 1010 [1982]; People v
Friscia, 51 NY2d 845, 847 [1980]; People v Irvis, 90 AD3d 1302,
1303 [2011], lv denied 19 NY3d 962 [2012]; People v Burke, 90
AD3d 1246, 1247 [2011], lv denied 18 NY3d 956 [2012]).
Defendant's remaining contentions are similarly unpersuasive.

     Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
