SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
409
KA 11-00633
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ALEXA R. KNOXSAH, DEFENDANT-APPELLANT.
JAMES L. DOWSEY, III, ELLICOTTVILLE (KELIANN M. ELNISKI OF COUNSEL),
FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered January 24, 2011. The judgment convicted
defendant, upon her plea of guilty, of burglary in the third degree,
criminal mischief in the third degree, overdriving, torturing or
injuring an animal, petit larceny and assault in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her
upon a plea of guilty of, inter alia, burglary in the third degree
(Penal Law § 140.20). We reject defendant’s contention that her
waiver of the right to appeal was invalid (see generally People v
Lopez, 6 NY3d 248, 256). Although defendant’s further contention that
her plea was not knowingly, voluntarily and intelligently entered
survives her valid waiver of the right to appeal, defendant failed to
preserve that contention for our review (see People v Davis, 45 AD3d
1357, 1357-1358, lv denied 9 NY3d 1005). This case does not fall
within the rare exception to the preservation requirement set forth in
People v Lopez (71 NY2d 662, 666), “inasmuch as nothing in the plea
colloquy casts significant doubt on defendant’s guilt or the
voluntariness of the plea” (People v Lewandowski, 82 AD3d 1602, 1602).
In any event, the record establishes that the plea was knowingly,
voluntarily, and intelligently entered (see generally People v
Shubert, 83 AD3d 1577, 1578).
Although defendant was not required to preserve for our review
the contention that she was denied the right to counsel (see People v
Kinchen, 60 NY2d 772, 773; People v Harvey, 70 AD3d 1454, 1455, lv
denied 15 NY3d 750), we nevertheless conclude that it is without
merit. The postplea return on warrant appearance was not a “critical
stage of the proceeding” (People v Chapman, 69 NY2d 497, 500), and
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KA 11-00633
thus the absence of defense counsel did not constitute a deprivation
of defendant’s rights (see generally People v Garcia, 247 AD2d 549,
affd 92 NY2d 726, cert denied 528 US 845; People v Bogan, 78 AD3d 855,
855, lv denied 16 NY3d 742; People v Blas, 192 AD2d 540, 540, lv
denied 82 NY2d 751).
Defendant further contends that County Court improperly issued a
bench warrant based upon her failure to appear for a probation
interview and improperly held her without bail pending sentencing upon
her rearrest. Even assuming, arguendo, that defendant’s contentions
survive her valid waiver of the right to appeal, defendant failed to
preserve those contentions for our review inasmuch as she did not
raise them before County Court (see generally CPL 470.05 [2]), or by
way of a motion to withdraw the plea or to vacate the judgment of
conviction, and we decline to reach those contentions as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant’s contention that she was denied effective assistance
of counsel does not survive her plea or her valid waiver of the right
to appeal because defendant “failed to demonstrate that ‘the plea
bargaining process was infected by [the] allegedly ineffective
assistance or that defendant entered the plea because of [her]
attorney[’s] allegedly poor performance’ ” (People v Wright, 66 AD3d
1334, lv denied 13 NY3d 912; see People v Rizek [appeal No. 1], 64
AD3d 1180, lv denied 13 NY3d 862). In any event, we nevertheless
conclude that she received meaningful representation (see generally
People v Ford, 86 NY2d 397, 404), inasmuch as “nothing in the record
casts doubt upon the apparent effectiveness of counsel” (People v
Nieves, 89 AD3d 1285, 1286 [internal quotation marks omitted]).
Indeed, defense counsel successfully argued for the promised sentence
despite defendant’s rearrest in violation of the plea agreement.
Entered: April 27, 2012 Frances E. Cafarell
Clerk of the Court