DURODOYE, RACHAEL, PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1383
KA 11-01733
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RACHAEL DURODOYE, DEFENDANT-APPELLANT.
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.
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.
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 NY3d 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 AD3d 1435, 1435, lv denied 19
NY3d 973; see People v Moissett, 76 NY2d 909, 910-911). We reject
defendant’s further contention that the court was required to discuss
the waiver at sentencing (see generally Moissett, 76 NY2d at 912;
People v Pieper, 104 AD3d 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 AD3d 1393, 1394, lv denied 12 NY3d 913). This case does not fall
within the narrow exception to the preservation requirement (see
People v Lopez, 71 NY2d 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 NY2d 733, 737).
-2- 1383
KA 11-01733
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 AD3d 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.
Entered: January 3, 2014 Frances E. Cafarell
Clerk of the Court