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

403
KA 16-01415
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT.

                    V                              MEMORANDUM AND ORDER

JERRY MASSEY, DEFENDANT-APPELLANT,


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered June 12, 2015. The judgment convicted
defendant, upon his plea of guilty, of burglary 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 his plea of guilty of burglary in the second degree (Penal Law
§ 140.25 [2]). We reject defendant’s contention that his waiver of
the right to appeal was not knowingly, voluntarily, and intelligently
entered (see generally People v Lopez, 6 NY3d 248, 256). County Court
“did not conflate that right with those automatically forfeited by a
guilty plea” (People v McCrea, 140 AD3d 1655, 1655, lv denied 28 NY3d
933 [internal quotation marks omitted]), and we conclude that “the
court engaged defendant ‘in an adequate colloquy to ensure that the
waiver of the right to appeal was a knowing and voluntary choice’ ”
(People v Marshall, 144 AD3d 1544, 1545). Defendant’s contention that
his plea was not knowingly, voluntarily, and intelligently entered
because he did not recite the elements of the crime and only agreed
with the court’s description of the incident is actually a challenge
to the factual sufficiency of the plea allocution, which is foreclosed
by defendant’s valid waiver of the right to appeal (see People v Dale,
142 AD3d 1287, 1288, lv denied 28 NY3d 1144).

     Defendant further contends that his guilty plea was not
knowingly, intelligently, and voluntarily entered and that the court
abused its discretion in denying his motion to withdraw his plea on
that ground without first conducting a hearing. Although that
contention survives defendant’s waiver of the right to appeal (see
id.), the record establishes that defendant withdrew his motion to
withdraw his guilty plea and thereby waived any contention with
                                 -2-                           403
                                                         KA 16-01415

respect to that motion (see People v Harris, 97 AD3d 1111, 1112, lv
denied 19 NY3d 1026; People v Gilliam, 96 AD3d 1650, 1651, lv denied
19 NY3d 1026).

     To the extent that defendant’s contention that he was denied
effective assistance of counsel survives his valid waiver of the right
to appeal (see People v Rausch, 126 AD3d 1535, 1535, lv denied 26 NY3d
1149), we conclude that it lacks merit. Defendant has not shown that
his motion to withdraw his guilty plea would have been successful if
not withdrawn (see Harris, 97 AD3d at 1112). Moreover, defendant
“receive[d] an advantageous plea and nothing in the record casts doubt
on the apparent effectiveness of [defense] counsel” (Dale, 142 AD3d at
1290 [internal quotation marks omitted]).

     Finally, the valid waiver of the right to appeal forecloses
defendant’s challenge to the severity of his sentence (see generally
Lopez, 6 NY3d at 255-256).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
