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The People of the State of New York v. Jose Jimenez

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


June 7, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOSE JIMENEZ, ALSO KNOWN AS PAPITO, APPELLANT.

Appeal from a judgment of the County Court of Schenectady County (Coccoma, J.), rendered May 24, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

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

MEMORANDUM AND ORDER

Calendar Date: April 23, 2012

Before: Mercure, J.P., Rose, Stein, Garry and Egan Jr., JJ.

In full satisfaction of a 22-count indictment, defendant pleaded guilty to one count of criminal possession of a weapon in the second degree, waived his right to appeal and thereafter was sentenced in accordance with the terms of the plea agreement to seven years in prison followed by four years of postrelease supervision. Defendant now appeals, contending only that he was denied the effective assistance of counsel.

We affirm. To the extent that defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea, it survives his otherwise valid waiver of the right to appeal (see People v Peterkin, 77 AD3d 1017, 1017 [2010]; People v Singh, 73 AD3d 1384, 1385 [2010], lv denied 15 NY3d 809 [2010]). However, as the record before us does not reflect that defendant moved to withdraw his plea or vacate the judgment of conviction, his ineffective assistance of counsel claim is not preserved for our review (see People v MacDonald, 77 AD3d 989, 990 [2010], lv denied 15 NY3d 954 [2010]; People v Rivera, 78 AD3d 1423, 1424 [2010]). In any event, defendant's present assertion that he did not understand the nature of the proceedings due to his limited understanding of the English language is belied by the record (see People v Feliz, 51 AD3d 1278, 1279 [2008]; People v Tofaj, 14 AD3d 734, 734 [2005]; People v Pagan, 284 AD2d 651, 652 [2001], lv denied 96 NY2d 922 [2001]). Accordingly, the judgment of conviction is affirmed.

Mercure, J.P., Rose, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120607

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