People v. Fludd

Appellate Division of the Supreme Court of New York

People v. Fludd

33 A.D.3d 1124, 822 N.Y.S.2d 821

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

DecidedOctober 26, 2006

StatusPublished

Cited by9 cases

This text of 33 A.D.3d 1124 (People v. Fludd) 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.

Bluebook

People v. Fludd, 33 A.D.3d 1124, 822 N.Y.S.2d 821 (N.Y. Ct. App. 2006).

Pincite

Opinion

Lahtinen, J.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered December 1, 2004, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to attempted criminal sale of a con[1125]*1125trolled substance in the third degree (a class C felony) in satisfaction of an indictment charging him with three class B felonies for allegedly possessing and selling cocaine. As part of the negotiated plea bargain, he executed a written waiver of his right to appeal and he received a sentence, as a second felony offender, of 5 to 10 years in prison. Defendant appeals.

We affirm. Defendant’s argument that his waiver of appeal was the product of coercion was not properly preserved for review inasmuch as he did not move to withdraw his guilty plea or vacate the judgment of conviction (see People v Kirkland, 2 AD3d 1063, 1063 [2003]; People v Holland, 270 AD2d 718, 718 [2000], lv denied 95 NY2d 798 [2000]). Even if we were to consider the argument, we would find it unpersuasive since the record reveals that defendant executed a detailed written waiver acknowledging his right to appeal, relating that he had discussed his appellate options with his attorney and stating that he was waiving his right to appeal voluntarily (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Bronson, 28 AD3d 936, 937 [2006]). While defendant expressed disappointment with his attorney, there was no showing of ineffectiveness (see generally People v McDonald, 1 NY3d 109, 113-114 [2003]) and no factual basis upon which to conclude that he was coerced to take the plea because of less than adequate representation by counsel. Indeed, counsel was able to negotiate a favorable deal in a case where defendant faced a potential life sentence if convicted.

We decline to address the remaining contentions in light of the effective appeal waiver.

Crew III, J.E, Carpinello, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.

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Lahtinen, J.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered December 1, 2004, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to attempted criminal sale of a con[1125]*1125trolled substance in the third degree (a class C felony) in satisfaction of an indictment charging him with three class B felonies for allegedly possessing and selling cocaine. As part of the negotiated plea bargain, he executed a written waiver of his right to appeal and he received a sentence, as a second felony offender, of 5 to 10 years in prison. Defendant appeals.

We affirm. Defendant’s argument that his waiver of appeal was the product of coercion was not properly preserved for review inasmuch as he did not move to withdraw his guilty plea or vacate the judgment of conviction (see People v Kirkland, 2 AD3d 1063, 1063 [2003]; People v Holland, 270 AD2d 718, 718 [2000], lv denied 95 NY2d 798 [2000]). Even if we were to consider the argument, we would find it unpersuasive since the record reveals that defendant executed a detailed written waiver acknowledging his right to appeal, relating that he had discussed his appellate options with his attorney and stating that he was waiving his right to appeal voluntarily (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Bronson, 28 AD3d 936, 937 [2006]). While defendant expressed disappointment with his attorney, there was no showing of ineffectiveness (see generally People v McDonald, 1 NY3d 109, 113-114 [2003]) and no factual basis upon which to conclude that he was coerced to take the plea because of less than adequate representation by counsel. Indeed, counsel was able to negotiate a favorable deal in a case where defendant faced a potential life sentence if convicted.

We decline to address the remaining contentions in light of the effective appeal waiver.

Crew III, J.E, Carpinello, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.

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Bluebook (online)

33 A.D.3d 1124, 822 N.Y.S.2d 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fludd-nyappdiv-2006.

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