People v. Duzant

Appellate Division of the Supreme Court of New York

People v. Duzant

15 A.D.3d 860, 789 N.Y.S.2d 594, 2005 N.Y. App. Div. LEXIS 1248

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 4, 2005

StatusPublished

Cited by2 cases

This text of 15 A.D.3d 860 (People v. Duzant) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Duzant, 15 A.D.3d 860, 789 N.Y.S.2d 594, 2005 N.Y. App. Div. LEXIS 1248 (N.Y. Ct. App. 2005).

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Opinion

[861]*861Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered July 25, 2003. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree and criminal possession of a weapon in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [3]) and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). The waiver by defendant of the right to appeal encompasses his contentions that the sentence is unduly harsh or severe (see People v Hidalgo, 91 NY2d 733, 737 [1998]) and that County Court erred in denying his suppression motion (see People v Kemp, 94 NY2d 831, 833 [1999]). Because “[t]he denial of an opportunity to testify before the grand jury . . . does not ‘call into question the court’s jurisdiction nor [is it] of constitutional magnitude’ . . ., our review of that contention is foreclosed by defendant’s valid waiver of the right to appeal as well as by defendant’s plea of guilty” (People v Lighthall, 6 AD3d 1170, 1171 [2004], lv denied 3 NY3d 643 [2004], quoting People v Rook, 201 AD2d 931, 931 [1994]). “Although the waiver of the right to appeal does not encompass the contention that the plea was not knowingly, voluntarily and intelligently entered, defendant failed to move to withdraw the plea or to vacate the judgment of conviction and thus has failed to preserve that contention for our review” (People v Moore, 6 AD3d 1076, 1076 [2004], lv denied 3 NY3d 661 [2004]). Finally, “[t]he contention of defendant that he was denied effective assistance of counsel does not survive his guilty plea because there is no indication that the alleged ineffective assistance had any impact on the plea bargaining process or the voluntariness of the plea” (People v Dunn, 261 AD2d 940, 940 [1999], lv denied 94 NY2d 822 [1999]). In any event, those contentions lack merit. Present — Green, J.P, Scudder, Martoche, Smith and Lawton, JJ.

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[861]*861Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered July 25, 2003. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree and criminal possession of a weapon in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [3]) and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). The waiver by defendant of the right to appeal encompasses his contentions that the sentence is unduly harsh or severe (see People v Hidalgo, 91 NY2d 733, 737 [1998]) and that County Court erred in denying his suppression motion (see People v Kemp, 94 NY2d 831, 833 [1999]). Because “[t]he denial of an opportunity to testify before the grand jury . . . does not ‘call into question the court’s jurisdiction nor [is it] of constitutional magnitude’ . . ., our review of that contention is foreclosed by defendant’s valid waiver of the right to appeal as well as by defendant’s plea of guilty” (People v Lighthall, 6 AD3d 1170, 1171 [2004], lv denied 3 NY3d 643 [2004], quoting People v Rook, 201 AD2d 931, 931 [1994]). “Although the waiver of the right to appeal does not encompass the contention that the plea was not knowingly, voluntarily and intelligently entered, defendant failed to move to withdraw the plea or to vacate the judgment of conviction and thus has failed to preserve that contention for our review” (People v Moore, 6 AD3d 1076, 1076 [2004], lv denied 3 NY3d 661 [2004]). Finally, “[t]he contention of defendant that he was denied effective assistance of counsel does not survive his guilty plea because there is no indication that the alleged ineffective assistance had any impact on the plea bargaining process or the voluntariness of the plea” (People v Dunn, 261 AD2d 940, 940 [1999], lv denied 94 NY2d 822 [1999]). In any event, those contentions lack merit. Present — Green, J.P, Scudder, Martoche, Smith and Lawton, JJ.

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15 A.D.3d 860, 789 N.Y.S.2d 594, 2005 N.Y. App. Div. LEXIS 1248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-duzant-nyappdiv-2005.

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