SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

766 

KA 11-01474 

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DAVID J. WEINSTOCK, DEFENDANT-APPELLANT. 

 

SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT. 

DAVID J. WEINSTOCK, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Victoria M.

Argento, J.), rendered May 12, 2011. The judgment convicted

defendant, upon his plea of guilty, of rape in the first degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon his plea of guilty of rape in the first degree (Penal Law §

130.35 [1]). We reject defendant’s contention in his main and pro se

supplemental briefs that his waiver of the right to appeal was

invalid. We agree with defendant that County Court’s statement to

defendant that, “by pleading guilty, [he was] giving up [his] right to

allege that the police unlawfully collected evidence or did anything

else illegal” was misleading insofar as it improperly implied that

defendant’s right to challenge the court’s suppression ruling on

appeal was forfeited upon entry of the guilty plea (see People v

Braxton, ___ AD3d ___, ___ [June 19, 2015]; see generally People v

Moyett, 7 NY3d 892, 892-893; People v Billingslea, 6 NY3d 248, 257). 

“Nevertheless, we conclude that [the court’s] plea colloquy, together

with the written waiver of the right to appeal, adequately apprised

defendant that the right to appeal is separate and distinct from those

rights automatically forfeited upon a plea of guilty” (Braxton, ___

AD3d at ___ [internal quotation marks omitted]; see People v Buske, 87

AD3d 1354, 1354, lv denied 18 NY3d 882). That valid waiver of the

right to appeal encompasses his contention that the court erred in

refusing to suppress identification testimony (see People v Jenkins,

117 AD3d 1528, 1529, lv denied 23 NY3d 1063). By pleading guilty,

moreover, defendant forfeited his further contention that the court

erred in refusing to reopen the Wade hearing (see People v Fulton, 30

AD3d 961, 962, lv denied 7 NY3d 789).
-2- 766 

KA 11-01474 

Contrary to the contentions in defendant’s main and pro se

supplemental briefs, the court afforded him a reasonable opportunity

to advance the claims in his pro se motion to withdraw his guilty plea

(see People v Frederick, 45 NY2d 520, 525; People v Tinsley, 35 NY2d

926, 927), and “the court did not abuse its discretion in discrediting

those claims” (People v Merritt, 115 AD3d 1250, 1250-1251). Nor did

the court abuse its discretion in denying defendant’s request for new

counsel on the motion to withdraw the guilty plea inasmuch as defense

counsel did not take a position adverse to the motion (see People v

Rossborough, 105 AD3d 1332, 1333, lv denied 21 NY3d 1045). Further,

defense counsel’s failure to join in the motion did not constitute

ineffective assistance (see People v Carpenter, 93 AD3d 950, 952, lv

denied 19 NY3d 863). 

The contention in defendant’s pro se supplemental brief that the

court erred in imposing an enhanced sentence based upon an uncharged

crime survives his waiver of the right to appeal (see People v

Williams, 35 AD3d 1198, 1199, lv denied 8 NY3d 928). That contention

lacks merit, however, inasmuch as “the record establishes that the

court did not impose an enhanced sentence but in fact imposed the

agreed-upon sentence” (People v Ibrahim, 48 AD3d 1095, 1095, lv denied

10 NY3d 864). 

Entered: June 19, 2015 Frances E. Cafarell

Clerk of the Court