SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
118
KA 14-00191
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DONALD R. COOPER, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (GARY M. PHILLIPS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (AMBER L. KERLING
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered December 16, 2013. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class E felony and aggravated unlicensed operation of a motor vehicle
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 driving while intoxicated (Vehicle and
Traffic Law § 1192 [2]) and aggravated unlicensed operation of a motor
vehicle in the second degree (§ 511 [2] [a]). We note at the outset
that the certificate of conviction contains a clerical error, i.e., it
incorrectly recites that defendant was convicted of aggravated
unlicensed operation of a motor vehicle in the first degree, and it
must therefore be amended to reflect that he was convicted of
aggravated unlicensed operation of a motor vehicle in the second
degree (see People v Saxton, 32 AD3d 1286, 1286-1287).
We agree with defendant that his waiver of the right to appeal is
not valid (see People v Jackson, 99 AD3d 1240, 1240-1241, lv denied 20
NY3d 987). 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) and, thus, “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” (Jackson, 99 AD3d at 1241 [internal
quotation marks omitted]). Defendant failed to preserve for our
review his contention with respect to the alleged inaccuracy of
information relied upon by the court in sentencing him (see People v
Lord, 59 AD3d 1010, 1011, lv denied 12 NY3d 855), and we decline to
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KA 14-00191
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [3] [c]). Defendant’s
contention that he was denied effective assistance of counsel does not
survive his plea because defendant “failed to demonstrate that the
plea bargaining process was infected by [the] allegedly ineffective
assistance or that [he] entered the plea because of his attorney[’s]
allegedly poor performance” (People v Grandin, 63 AD3d 1604, 1604
[internal quotation marks omitted], lv denied 13 NY3d 744). In any
event, we conclude that defendant was afforded meaningful
representation inasmuch as he “receive[d] an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness of
counsel” (People v Ford, 86 NY2d 397, 404; see People v Parson, 122
AD3d 1441, 1443). Finally, the sentence is not unduly harsh or
severe.
Entered: February 11, 2016 Frances E. Cafarell
Clerk of the Court