People v. Cruz

270 A.D.2d 890, 706 N.Y.S.2d 923, 2000 N.Y. App. Div. LEXIS 3525

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a guilty plea of murder in the second degree (Penal Law § 125.25 [3]). The record establishes that defendant’s waiver of the right to appeal was voluntary, knowing and intelligent (see, People v DeJesus, 248 AD2d 1023, lv denied 92 NY2d 879; People v Zimmerman, 219 AD2d 848, lv denied 88 NY2d 856). Contrary to the contention of defendant, the record establishes that he received effective assistance of counsel (see, People v Baldi, 54 NY2d 137, 147). We reject the contention of defendant that, during his plea allocution, he raised the possibility of an intoxication defense and that County Court therefore erred in accepting his guilty plea

without making further inquiry (see, People v Lopez, 71 NY2d 662, 666). Furthermore, the contention of defendant that he was denied effective assistance of appellate counsel is premature and should be raised in a common-law coram nobis proceeding brought in this Court (see, People v Bachert, 69 NY2d 593, 595-596; People v Pike, 254 AD2d 727, 729). Finally, the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Niagara County Court, Hannigan, J. — Murder, 2nd Degree.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Kehoe, JJ.