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The People of the State of New York v. Dalvin Beltran

State of New York Supreme Court, Appellate Division Third Judicial Department


December 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DALVIN BELTRAN, APPELLANT.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered July 14, 2009, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

The opinion of the court was delivered by: Lahtinen, J.

Decided and Entered: December 30, 2010

MEMORANDUM AND ORDER

Calendar Date: November 18, 2010

Before: Peters, J.P., Rose, Lahtinen, Kavanagh and Egan Jr., JJ.

Following a fatal stabbing, defendant was charged in an indictment with murder in the second degree and criminal possession of a weapon in the third degree. During jury selection, the parties adopted County Court's suggestion that they select alternate jurors from among those prospective jurors who had previously been removed by peremptory challenges. The alternate jurors were then sworn in at the same time as the trial jurors. After opening statements in the trial had been made, defendant pleaded guilty to one count of manslaughter in the first degree and waived his right to appeal. County Court sentenced defendant, as agreed, to a prison term of 10 years and postrelease supervision of five years. Defendant appeals and we affirm.

Defendant initially argues that improper methods were used to select and swear in the alternate jurors. By foregoing a trial and pleading guilty, however, "defendant waived all of his trial rights and thus necessarily surrendered his right to challenge on appeal any alleged trial errors," including those associated with jury selection (People v Green, 75 NY2d 902, 904-905 [1990], cert denied 498 US 860 [1990]; see People v Harris, 293 AD2d 818, 819 [2002], lv denied 98 NY2d 676 [2002]). Moreover, defendant did not object to the procedures used and agreed to the selection of the previously excused prospective jurors, and any improprieties are not properly presented for our review (see People v Colon, 90 NY2d 824, 826 [1997]; People v Agramonte, 87 NY2d 765, 770-771 [1996]; People v Molano, 70 AD3d 1172, 1174-1175 [2010], lv denied 15 NY3d 776 [2010]).

Defendant also asserts that he was afforded the ineffective assistance of counsel by, among other things, defense counsel's failure to advise him that he had a potential intoxication defense prior to pleading guilty. While defendant's claim survives his appeal waiver to the extent that it implicates the voluntariness of his guilty plea, it remains unpreserved due to his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Holmes, 75 AD3d 834, 835 [2010]; People v Gentry, 73 AD3d 1383, 1384 [2010]). In any event, defense counsel raised an intoxication defense that contributed to the plea agreement reached and, given defendant's admissions during the plea colloquy, we are satisfied that he received meaningful representation (see People v Townsend, 306 AD2d 761, 762 [2003], lv denied 100 NY2d 625 [2003]; People v Jaworski, 296 AD2d 597, 598 [2002]).

Peters, J.P., Rose, Kavanagh and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20101230

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