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People v. Durodoye

Supreme Court of New York, Fourth Department

January 3, 2014

The People of the State of New York, RESPONDENT,
v.
Rachael Durodoye, DEFENDANT-APPELLANT.

Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered September 8, 2010. The judgment convicted defendant, upon her plea of guilty, of robbery in the second degree.

FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF COUNSEL), FOR DEFENDANT-APPELLANT.

RACHAEL DURODOYE, DEFENDANT-APPELLANT PRO SE.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of robbery in the second degree (Penal Law § 160.10 [1]). Contrary to defendant's contention, the record establishes that she knowingly, voluntarily, and intelligently waived her right to appeal (see People v Lopez, 6 N.Y.3d 248, 256). We reject defendant's contention that County Court should have explained that certain issues survive a waiver of the right to appeal, inasmuch as " [n]o particular litany is required for an effective waiver of the right to appeal' " (People v Fisher, 94 A.D.3d 1435, 1435, lv denied 19 N.Y.3d 973; see People v Moissett, 76 N.Y.2d 909, 910-911). We reject defendant's further contention that the court was required to discuss the waiver at sentencing (see generally Moissett, 76 N.Y.2d at 912; People v Pieper, 104 A.D.3d 1225, 1225). Defendant's contention that the guilty plea was not knowingly, voluntarily, and intelligently entered survives the waiver of the right to appeal but is not preserved for our review because she failed to move to withdraw the plea or to set aside the judgment of conviction (see People v Busch, 60 A.D.3d 1393, 1394, lv denied 12 N.Y.3d 913). This case does not fall within the narrow exception to the preservation requirement (see People v Lopez, 71 N.Y.2d 662, 666). The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentence (see People v Hidalgo, 91 N.Y.2d 733, 737).

Defendant contends in her pro se supplemental brief that she was denied effective assistance of counsel because defense counsel was subsequently convicted of a charge that adversely reflected on his honesty, trustworthiness, or fitness as an attorney. Defendant's contention does not survive the guilty plea or the waiver of the right to appeal inasmuch as " defendant failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance' " (Fisher, 94 A.D.3d at 1435-1436). Indeed, we note that defendant does not point to anything in defense counsel's performance to show that she allegedly received less than meaningful representation.


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