SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
487
KA 14-00867
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DANIEL S. ROUNDS, DEFENDANT-APPELLANT.
JOHN J. RASPANTE, UTICA, FOR DEFENDANT-APPELLANT.
LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO,
ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Lewis County Court (Daniel R. King,
J.), rendered October 18, 2013. The judgment convicted defendant,
upon his plea of guilty, of criminal sexual act in the first 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 criminal sexual act in the first degree
(Penal Law § 130.50 [3]). We note at the outset that the notice of
appeal contains an incorrect description of the court from which the
appeal is taken. The notice of appeal is otherwise accurate, however,
and “we exercise our discretion, in the interest of justice, and treat
the notice of appeal as valid” (People v Mitchell, 93 AD3d 1173, 1173,
lv denied 19 NY3d 999). We agree with defendant that his waiver of
the right to appeal was not valid. During the plea colloquy, County
Court “conflated the appeal waiver with the rights automatically
waived by the guilty plea” (People v Martin, 88 AD3d 473, 474, affd 19
NY3d 914; see People v Harris, 125 AD3d 1506, 1506, lv denied 26 NY3d
929). Consequently, “ ‘the record fails to establish that defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty’ ” (People
v Cooper, 136 AD3d 1397, 1398; see Martin, 88 AD3d at 474).
Nevertheless, we affirm.
Defendant failed to move to withdraw his plea or to vacate the
judgment of conviction, and he thus failed to preserve for our review
his contention that he was coerced into pleading guilty based on
statements made by the court and counsel prior to the plea (see People
v Boyd, 101 AD3d 1683, 1683; People v Lando, 61 AD3d 1389, 1389, lv
denied 13 NY3d 746). In any event, “defendant’s contention is belied
by the record inasmuch as, during the plea proceeding, defendant
denied that he had been threatened or otherwise influenced against his
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KA 14-00867
will into pleading guilty” (People v Hall, 82 AD3d 1619, 1619-1620, lv
denied 16 NY3d 895).
Defendant’s contention that he was denied effective assistance of
counsel survives his guilty plea to the extent that he contends that
the plea was infected by the alleged ineffective assistance (see
People v Gimenez, 59 AD3d 1088, 1089, lv denied 12 NY3d 816). After a
review of the record, however, we reject that contention (see
generally People v Ford, 86 NY2d 397, 404; People v Baldi, 54 NY2d
137, 147). “In the context of a guilty plea, a defendant has been
afforded meaningful representation when he or she receives an
advantageous plea and nothing in the record casts doubt on the
apparent effectiveness of [defense] counsel” (Ford, 86 NY2d at 404;
see People v Bonavito, 121 AD3d 1499, 1500, lv denied 25 NY3d 988;
People v Nieves, 299 AD2d 888, 889, lv denied 99 NY2d 631), which is
the case here. Indeed, we note that “the record reflects that
defendant expressed satisfaction with defense counsel’s services”
(People v Martin, 55 AD3d 1236, 1237-1238, lv denied 11 NY3d 927,
reconsideration denied 12 NY3d 855).
Finally, the sentence, including the period of postrelease
supervision, is not unduly harsh or severe.
Entered: June 10, 2016 Frances E. Cafarell
Clerk of the Court