Appeal from a judgment of the Cayuga County Court (Mark H.Fandrich, A.J.), rendered February 24, 2015. The judgment convicteddefendant, upon his plea of guilty, of promoting prison contraband inthe first degree.It is hereby ORDERED that the judgment so appealed from isunanimously affirmed.Memorandum: In appeal No. 1, defendant appeals from a judgmentconvicting him, upon hisAlfordplea entered during deliberationsfollowing a jury trial, of promoting prison contraband in the firstdegree (Penal Law § 205.25 [2]). In appeal No. 2, defendant appealsfrom an order denying his motion pursuant to CPL 440.30 (1-a) for DNAtesting on evidence including the weapon he was charged withpossessing. In appeal No. 3, defendant appeals from an order denyinghis motion pursuant to CPL 440.10 to vacate the judgment. We affirmin each appeal.Addressing first defendant’s contentions in his main brief withrespect to the judgment in appeal No. 1,we conclude that he“knowingly, intelligently, and voluntarily waived his right to appealas a condition of the plea” (People v Bizardi, 130 AD3d 1492, 1492[4th Dept 2015],lv denied27 NY3d 992 [2016];see generally People vSanders, 25 NY3d 337, 340-342 [2015]). Contrary to defendant’scontention, County Court “engage[d] [him] in an adequate colloquy toensure that the waiver of the right to appeal was a knowing andvoluntary choice . . . , and the record establishes that defendantunderstood that the right to appeal is separate and distinct fromthose rights automatically forfeited upon a plea of guilty” (Bizardi,130 AD3d at 1492 [internal quotation marks omitted];see Sanders, 25NY3d at 341). Contrary to defendant’s further contentions, weconclude that “the waiver of the right to appeal was not renderedinvalid based on the court’s failure to require defendant toarticulate the waiver in his own words” (People v Dozier, 59 AD3d 987,987 [4th Dept 2009], lv denied12 NY3d 815 [2009]), the court’sfailure ” ‘to specify during the colloquy which specific claimssurvive the waiver’ ” (Bizardi, 130 AD3d at 1492), or the fact thatthe waiver “was not reduced to writing” (People v Bryan, 78 AD3d 1692,1692 [4th Dept 2010],lv denied 16 NY3d 829 [2011];see People vNicholson, 6 NY3d 248, 257 [2006]).Defendant contends that the court erred in denying his motion todismiss the indictment on the ground that he was shackled andhandcuffed while appearing before the grand jury. Even assuming,arguendo, that defendant’s contention survives the valid waiver of theright to appeal (see People v Lopez, 6 NY3d 248, 255 [2006];People v Gilmore, 12 AD3d 1155, 1155-1156 [4th Dept 2004];People v Robertson, 279 AD2d 711, 712 [3d Dept 2001],lv denied 96 NY2d 805 [2001]), we conclude that it lacks merit. “Although ‘a criminal defendant may not be physically restrained in the presence of a [grand] jury unlessthere is a rational basis, articulated on the record, for therestraint’ . . . , reversal is not required here inasmuch as ‘theprosecutor . . . gave cautionary instructions to the [g]rand [j]ury,which dispelled any prejudice that may have resulted’ ” (People v Brooks, 140 AD3d 1780, 1781 [4th Dept 2016]). Moreover, “theoverwhelming nature of the evidence adduced before the grand juryeliminated the possibility that defendant was prejudiced as a resultof the improper shackling” (id.).Defendant’s further contention that his plea was “not voluntarilyentered because [he] provided only monosyllabic responses to [thecourt's] questions is actually a challenge to the factual sufficiencyof the plea allocution” (People v Hendrix, 62 AD3d 1261, 1262 [4thDept 2009], lv denied 12 NY3d 925 [2009]), which is encompassed by thevalid waiver of the right to appeal (seePeople v Smith, 26 AD3d 746,747 [4th Dept 2006],lv denied 7 NY3d 763 [2006];People v Biaselli, 12 AD3d 1133, 1133 [4th Dept 2004]). Defendant’s related contentionthat the court erred in accepting his Alford plea because the recordlacked the requisite strong evidence of actual guilt to support hisplea “survives his waiver of the right to appeal to the extent that itimplicates the voluntariness of the plea” (People v Elliott, 107 AD3d1466, 1466 [4th Dept 2013],lv denied 22 NY3d 996 [2013]). “By failing to move to withdraw the plea or vacate the judgment ofconviction on the ground that the record lacked the requisite ‘strongevidence of actual guilt,’ however, defendant failed to preserve hiscontention for our review . . . , and this case does not fall withinthe narrow exception to the preservation requirement” (id.; see People v Lopez, 71 NY2d 662, 666 [1988]). In any event, we conclude that “the record establishes that defendant’sAlford plea was the product of a voluntary and rational choice, and the record . . . containsstrong evidence of actual guilt” (Elliott, 107 AD3d at 1466 [internal quotation marks omitted]).Defendant contends that he was denied effective assistance ofcounsel because, according to defendant, defense counsel did notproperly challenge the jury panel (see generally CPL 270.10). That contention does not survive his plea or the valid waiver of the right to appeal inasmuch as defendant failed to demonstrate that the plea bargaining process was infected by the allegedly ineffectiveassistance or that he entered the plea because of defense counsel’sallegedly poor performance (see People v Brinson, 151 AD3d 1726, 1726 [4th Dept 2017],lv denied 29 NY3d 1124 [2017];see generally People vPetgen, 55 NY2d 529, 534-535 [1982], rearg denied 57 NY2d 674 [1982]).The contentions in defendant’s main and pro se supplementalbriefs that he was denied due process based upon preindictment andother prosecutorial misconduct are forfeited as a result of his guiltyplea (see People v Escalera, 121 AD3d 1519, 1520-1521 [4th Dept 2014], lv denied24 NY3d 1083 [2014];People v Anderson, 90 AD3d 1475, 1477 [4th Dept 2011], lv denied 18 NY3d 991 [2012]), and are encompassed by his waiver of the right to appeal (see People v Thomas, 56 AD3d 1240, 1240 [4th Dept 2008], lv denied 12 NY3d 763 [2009]).We conclude that defendant’s claim of actual innocence in his prose supplemental brief is not properly before us on defendant’s directappeal following his Alford plea. “A claim of actual innocence ‘mustbe based upon reliable evidence which was not presented at the [timeof the plea]‘ . . . , and thus must be raised by a motion pursuant toCPL article 440″ (People v Brockway, 148 AD3d 1815, 1815 [4th Dept2017]). Defendant failed to preserve his claim of actual innocencefor our review inasmuch as he “failed to move to withdraw the plea,and his postjudgment motion pursuant to CPL 440.10 did not seekvacatur on that ground” (People v Grimes, 53 AD3d 1055, 1056 [4th Dept 2008], lv denied11 NY3d 789 [2008]; see People v Jenkins, 84 AD3d 1403, 1409 [2d Dept 2011], lv denied19 NY3d 1026 [2012]). Moreover, a plea of guilty “should not be permitted to be used as a device for adefendant to avoid a [verdict following a] trial while maintaining aclaim of factual innocence” (People v Plunkett, 19 NY3d 400, 406 [2012]), and “the same is true of an Alford plea” (Brockway, 148 AD3d at 1815; see generally Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]).In appeal No. 2, defendant contends in his main brief that thecourt erred in summarily denying his motion pursuant to CPL 440.30(1-a) for DNA testing on evidence that included the weapon he wascharged with possessing. We reject that contention. The sole offensefor which defendant was indicted and convicted, i.e., promoting prisoncontraband in the first degree, a class D nonviolent felony (Penal Law§ 205.25 [2]), does not qualify as an offense for which the statuteauthorizes a motion for DNA testing of evidence following a plea ofguilty and entry of a judgment thereon (see CPL 440.30 [1-a] [2]).Contrary to defendant’s contention in appeal No. 3 in his mainbrief, the court properly denied his CPL 440.10 motion without ahearing on the ground that the judgment was “pending on appeal, andsufficient facts appear on the record with respect to the . . .issue[s] raised upon the motion to permit adequate review thereof uponsuch an appeal” (CPL 440.10 [2] [b];see People v Satterfield, 66 NY2d796, 799 [1985]). To the extent that defendant raises thoseadditional issues on his direct appeal in appeal No. 1, we concludethat they lack merit.such an appeal” (CPL 440.10 [2] [b];see People v Satterfield, 66 NY2d796, 799 [1985]). To the extent that defendant raises thoseadditional issues on his direct appeal in appeal No. 1, we concludethat they lack merit.Entered: June 8, 2018 Mark W. BennettClerk of the Court
