State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 17, 2014 105221 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

HAROLD C. STEVENSON,

Appellant.

________________________________

Calendar Date: May 27, 2014

Before: Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

__________

Elena Jaffe Tastensen, Saratoga Springs, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Sara E.

Fischer of counsel), for respondent.

__________

McCarthy, J.

Appeal from a judgment of the County Court of Washington

County (McKeighan, J.), rendered June 8, 2012, convicting

defendant upon his plea of guilty of the crime of criminal

possession of a controlled substance in the third degree.

Defendant pleaded guilty to criminal possession of a

controlled substance in the third degree in satisfaction of a

five-count indictment, pursuant to a plea agreement that included

an appeal waiver. After denying defendant's motion to withdraw

his plea, County Court imposed the agreed-upon term of two years

in prison with two years of postrelease supervision. Defendant

appeals.

Initially, defendant did not effectively waive his right to
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appeal because neither the oral colloquy nor the written appeal

waiver advised defendant that the appeal waiver "is separate and

distinct from those rights automatically forfeited upon a plea of

guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v

Bradshaw, 18 NY3d 257, 264 [2011]; People v Bressard, 112 AD3d

988, 988 [2013], lv denied 22 NY3d 1137 [2014]; People v Ladieu,

105 AD3d 1265, 1265 [2013], lv denied 21 NY3d 1017 [2013]). 

While defendant's claim that his guilty plea was not knowing,

voluntary and intelligent was preserved for appellate review by

his motion to vacate the plea, this claim lacks merit (see People

v Fiumefreddo, 82 NY2d 536, 543 [1993]). County Court advised

him of the terms of the plea agreement, the trial-related rights

that he was forgoing and the consequences of his plea, and he was

afforded an opportunity to consult with counsel and indicated

that he understood the plea terms and agreed to them. Defendant

then admitted to each of the allegations in count 1 of the

indictment. He was not required to recite the elements of the

crime or the underlying facts, as his unequivocal affirmative

responses to the court's questions were adequate to establish his

guilt (see People v Smith, 112 AD3d 1232, 1233 [2013], lv denied

22 NY3d 1203 [2014]).

We reject defendant's contention that he was deprived of

the effective assistance of counsel because counsel "allowed" him

to plead guilty while his statutory speedy trial motion was

pending (see People v Caban, 5 NY3d 143, 152 [2005]). Counsel

made and pursued a motion to dismiss on statutory speedy trial

grounds (compare People v Garcia, 33 AD3d 1050, 1051-1052 [2006],

lv denied 9 NY3d 844 [2007]), and presumably weighed the

likelihood of success on that motion when advising defendant to

accept a plea to only one of five counts, with a promise of the

minimum sentence on that count. It was ultimately defendant's

decision whether to accept the plea agreement while that motion

remained undecided. To the extent that defendant raises

arguments concerning what counsel advised him with regard to

whether to enter a guilty plea and what documents defendant may

or may not have had when he entered his plea, those arguments

address matters outside the record on appeal, which are more

properly raised in a motion to vacate the judgment pursuant to

CPL article 440 (see People v Haffiz, 19 NY3d 883, 885 [2012];

People v Morey, 110 AD3d 1378, 1379-1380 [2013], lv denied 23
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NY3d 965 [2014]). By pleading guilty, aware of the fact that his

CPL 30.30 motion was pending, defendant forfeited that defense

(see People v O'Brien, 56 NY2d 1009, 1010 [1982]; People v

Friscia, 51 NY2d 845, 847 [1980]; People v Irvis, 90 AD3d 1302,

1303 [2011], lv denied 19 NY3d 962 [2012]; People v Burke, 90

AD3d 1246, 1247 [2011], lv denied 18 NY3d 956 [2012]). 

Defendant's remaining contentions are similarly unpersuasive.

Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court