It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of kidnapping
Addressing first the judgment in appeal No. 1, although defendant contends in his pro se supplemental brief that the felony complaints were jurisdictionally defective, "[t]he felony complaint[s were] superseded by the indictment to which defendant pleaded guilty, and he therefore may not challenge the felony complaint[s]" on appeal (People v Anderson, 90 A.D.3d 1475, 1477 [4th Dept 2011], lv denied 18 N.Y.3d 991 [2012]; see People v Mitchell, 132 A.D.3d 1413, 1416 [4th Dept 2015], lv denied 27 N.Y.3d 1072 [2016]).
Contrary to defendant's contention in his pro se supplemental brief, the record establishes that his waiver of the right to appeal was knowing, intelligent, and voluntary (see People v Joubert, 158 A.D.3d 1314, 1315 [4th Dept 2018], lv denied 31 N.Y.3d 1014 [2018]; People v Smith, 138 A.D.3d 1497, 1497 [4th Dept 2016], lv denied 27 N.Y.3d 1139 [2016]; see generally People v Lopez, 6 N.Y.3d 248, 256 [2006]). We conclude that the valid waiver of the right to appeal forecloses our review of defendant's challenges in his main brief to County Court's adverse suppression ruling (see People v Sanders, 25 N.Y.3d 337, 342 [2015]; People v Kemp, 94 N.Y.2d 831, 833 [1999]). Defendant further contends in his pro se supplemental brief that he was arrested without probable cause and thus that the court should have granted that part of his motion seeking suppression of all evidence obtained as a result of his arrest. That contention is also encompassed by his valid waiver of the right to appeal (see Sanders, 25 NY3d at 342; Kemp, 94 NY2d at 833) and, moreover, defendant forfeited the right to raise that suppression issue on appeal inasmuch as he pleaded guilty before the court issued a ruling thereon (see People v Fernandez, 67 N.Y.2d 686, 688 [1986]; People v Russell, 128 A.D.3d 1383, 1384 [4th Dept 2015], lv denied 25 N.Y.3d 1207 [2015]).
We reject defendant's contention in his main brief that the court failed to make an appropriate inquiry into his request for substitution of his assigned counsel, which he made during an appearance prior to the plea proceeding. Defendant's contention
Defendant further contends in his main brief that his plea was not voluntarily entered because he was not informed of its direct consequences prior to pleading guilty. We reject that contention. "It is well settled that, in order for a plea to be knowingly, voluntarily and intelligently entered, a defendant must be advised of the direct consequences of that plea" (People v Jones, 118 A.D.3d 1360, 1361 [4th Dept 2014]; see People v Harnett, 16 N.Y.3d 200, 205 [2011]; People v Catu, 4 N.Y.3d 242, 244 [2005]). "The direct consequences of a plea — those whose omission from a plea colloquy makes the plea per se invalid — are essentially the core components of a defendant's sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine" (Harnett, 16 NY3d at 205). Here, although defendant's contention concerning the voluntariness of the plea survives his valid waiver of the right to appeal (see People v Neal, 148 A.D.3d 1699, 1699-1700 [4th Dept 2017], lv denied 29 N.Y.3d 1084 [2017]), preservation was required inasmuch as defendant was advised of the sentence, including its period of postrelease supervision, during the plea proceeding, and defendant failed to preserve his contention for our review because he did not move to withdraw the plea on that ground or
To the extent that defendant challenges the factual sufficiency of his plea allocution in his pro se supplemental brief, that challenge is encompassed by the valid waiver of the right to appeal (see People v Busch, 60 A.D.3d 1393, 1394 [4th Dept 2009], lv denied 12 N.Y.3d 913 [2009]). Although defendant's further contention in his pro se supplemental brief that his plea was involuntary survives his waiver of the right to appeal (see People v Seaberg, 74 N.Y.2d 1, 10 [1989]), defendant failed to preserve that contention for our review inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction on the grounds now raised on appeal (see People v VanDeViver, 56 A.D.3d 1118, 1118 [4th Dept 2008], lv denied 11 N.Y.3d 931 [2009], denied reconsideration 12 N.Y.3d 788 [2009]), and this case does not fall within the narrow exception to the preservation requirement (see People v Lopez, 71 N.Y.2d 662, 666 [1988]).
With respect to the judgment in appeal No. 1, defendant contends in his pro se supplemental brief that the record establishes that he was denied effective assistance of counsel. With respect to the order in appeal No. 2, defendant contends in his main and pro se supplemental briefs that the court should have granted his motion pursuant to CPL 440.10 to vacate the judgment because the plea was infected by ineffective assistance of counsel and was otherwise involuntary or, at minimum, that he is entitled to a hearing thereon. We reject those contentions.
"Where, as here, a defendant contends that he or she was denied the right to effective assistance of counsel guaranteed by both the Federal and New York State Constitutions, we evaluate the claim using the state standard, which affords greater protection than its federal counterpart" (People v Conway,
Here, to the extent that defendant's contention in appeal No. 1 in his pro se supplemental brief that he was denied effective assistance of counsel survives the plea and his valid waiver of the right to appeal (see People v Rausch, 126 A.D.3d 1535, 1535 [4th Dept 2015], lv denied 26 N.Y.3d 1149 [2016]), we conclude that his contention lacks merit (see generally Ford, 86 NY2d at 404).
Addressing the order in appeal No. 2, we conclude that the court properly determined that defendant received meaningful representation. Defense counsel, among other things, successfully sought suppression of significant evidence against defendant and negotiated an advantageous plea bargain that greatly reduced defendant's maximum sentencing exposure of 25 years to life imprisonment had he been convicted of the top count of kidnapping in the first degree (Penal Law § 135.25 [2] [b]; see § 70.00 [2] [a]; [3] [a] [i]), and nothing in the record casts doubt on the apparent effectiveness of defense counsel (see People v Lewis, 138 A.D.3d 1346, 1348-1349 [3d Dept 2016], lv denied 28 N.Y.3d 1073 [2016]; People v Loomis, 256 A.D.2d 808, 808 [3d Dept 1998], lv denied 93 N.Y.2d 854 [1999]).
The court also properly denied defendant's motion pursuant to CPL 440.10 without a hearing because, "given the nature of the claimed ineffective assistance, the motion could be determined on the trial record and defendant's submissions on the motion" (Satterfield, 66 NY2d at 799; see People v Witkop,
Defendant further contends in his pro se supplemental brief that, as alleged in his motion, defense counsel failed to advise him at the time of the plea that he would be required to sign a document at sentencing admitting his status as a predicate felon. The court properly concluded, however, that defendant conceded in his supporting affidavit that he was aware that the plea bargain required that he acknowledge being previously convicted of a felony, and that any failure by defense counsel to explain that defendant would also have to sign a document to that effect does not constitute ineffective assistance.
Contrary to defendant's further contention in his pro se supplemental brief, the court properly determined that
We have considered defendant's remaining contentions in his pro se supplemental brief and conclude that they are without merit.