COOPER, DONALD R., PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

118 KA 14-00191 PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

DONALD R. COOPER, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (GARY M. PHILLIPS OF COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (AMBER L. KERLING OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.), rendered December 16, 2013. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated, a class E felony and aggravated unlicensed operation of a motor vehicle in the second 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 driving while intoxicated (Vehicle and Traffic Law § 1192 [2]) and aggravated unlicensed operation of a motor vehicle in the second degree (§ 511 [2] [a]). We note at the outset that the certificate of conviction contains a clerical error, i.e., it incorrectly recites that defendant was convicted of aggravated unlicensed operation of a motor vehicle in the first degree, and it must therefore be amended to reflect that he was convicted of aggravated unlicensed operation of a motor vehicle in the second degree (see People v Saxton, 32 AD3d 1286, 1286-1287).

We agree with defendant that his waiver of the right to appeal is not valid (see People v Jackson, 99 AD3d 1240, 1240-1241, lv denied 20 NY3d 987). During the plea colloquy, County Court “conflated the appeal waiver with the rights automatically waived by the guilty plea” (People v Martin, 88 AD3d 473, 474, affd 19 NY3d 914) and, thus, “the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Jackson, 99 AD3d at 1241 [internal quotation marks omitted]). Defendant failed to preserve for our review his contention with respect to the alleged inaccuracy of information relied upon by the court in sentencing him (see People v Lord, 59 AD3d 1010, 1011, lv denied 12 NY3d 855), and we decline to

-2- 118 KA 14-00191

exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). Defendant’s contention that he was denied effective assistance of counsel does not survive his plea because defendant “failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of his attorney[’s] allegedly poor performance” (People v Grandin, 63 AD3d 1604, 1604 [internal quotation marks omitted], lv denied 13 NY3d 744). In any event, we conclude that defendant was afforded meaningful representation inasmuch as he “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v Ford, 86 NY2d 397, 404; see People v Parson, 122 AD3d 1441, 1443). Finally, the sentence is not unduly harsh or severe.

Entered: February 11, 2016 Frances E. Cafarell Clerk of the Court