| People v Buck |
| 2016 NY Slip Op 01015 [136 AD3d 1117] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael R. Buck, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers ofcounsel), for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Otsego County (Lambert,J.), rendered August 9, 2014, convicting defendant upon his plea of guilty of the crime ofmanslaughter in the first degree.
Defendant was charged in a four-count indictment with murder in the second degreeand other crimes. The charges followed an incident on September 21, 2013 in whichdefendant held his father hostage in the father's bedroom and eventually shot his fathermultiple times in the head and body, causing his death. Pursuant to a negotiatedagreement that included a waiver of appeal, defendant pleaded guilty to manslaughter inthe first degree in satisfaction of all charges. Defendant was thereafter sentenced,consistent with the terms of the plea agreement, to a prison term of 20 years, followed byfive years of postrelease supervision. Defendant now appeals.[FN1]
We affirm. Defendant argues that the plea allocution was deficient and that his plea[*2]should be vacated as involuntary due to CountyCourt's failure to inquire as to potential intoxication or justification defenses. Whiledefendant's challenge to the voluntariness of his guilty plea survives any appeal waiver,these claims are unpreserved for our review as the record fails to disclose that defendantmade an appropriate postallocution motion to withdraw his guilty plea (see CPL220.60 [3]; People vDeCenzo, 132 AD3d 1160, 1161 [2015]; People v Hudson, 130 AD3d 1320, 1320 [2015]; see also People v Davis, 24NY3d 1012, 1013 [2014]). Indeed, at sentencing, defendant expressly indicated thathe did not wish to withdraw his guilty plea. Moreover, the narrow exception to thepreservation requirement was not implicated here, as defendant admitted that heintentionally aimed a gun at his father and shot him, intending to cause serious physicalinjury, and made no statements that were inconsistent with his guilt, negated an essentialelement of that crime or called into question the voluntariness of his plea (see Peoplev Lopez, 71 NY2d 662, 667-668 [1988]; People v Hare, 110 AD3d 1117, 1117 [2013]; see also People v Tyrell, 22NY3d 359, 363-364 [2013]). In that regard, defendant did not at any point duringthe plea allocution claim or suggest that he was intoxicated or had acted in self-defense atthe time of the shooting and, in recognition of the fact that he was the initial aggressor,he expressly waived any claim of self-defense.[FN2] Were these claims preserved, we wouldfind that defendant's guilty plea was knowing, voluntary and intelligent (see People v Haffiz, 19 NY3d883, 884-885 [2012]; People v Fiumefreddo, 82 NY2d 536, 543[1993]).
Defendant further challenges the sentence as harsh and excessive. While a waiver ofappeal was recited as a term of the plea agreement, we agree with defendant that hisappeal waiver was not knowing, voluntary and intelligent, as County Court failed toexplain the nature of the right being waived or ascertain that he had discussed it withcounsel and further failed to adequately convey "that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilt" (People v Lopez, 6 NY3d248, 256 [2006]). While the record on appeal contains a written waiver of appealdated subsequent to sentencing, there was no reference to it on the record and,consequently, no "attempt by the court to ascertain on the record an acknowledgementfrom defendant that he had, in fact, signed the waiver or that, if he had, he was aware ofits contents" (People v Callahan, 80 NY2d 273, 283 [1992]; accord People v Mones, 130AD3d 1244, 1245 [2015]). While defendant's challenge to the severity of thesentence is, therefore, not precluded (see People v Lopez, 6 NY3d at 256), we arenot persuaded that a reduction of the sentence in the interest of justice is warranted(see CPL 470.15 [6] [b]). Defendant engaged in protracted violent conduct withhis young daughter in the house, holding his father hostage for hours while shooting inthe father's vicinity at least 20 times to control his movements and thereafter repeatedlyshot the father in the head and body, for which he expressed no remorse. We find nosupport for his claim that the agreed-upon sentence, which was less than the maximum(see Penal Law § 70.02 [3] [a]), was unduly harsh or excessive.
Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Although defendant'snotice of appeal contains an incorrect judgment date, we will overlook the error and treatthe notice of appeal, which was timely, as valid (see CPL 460.10 [6]; People v Clapper, 133 AD3d1037, 1038 n [2015]).
Footnote 2:Postplea commentssubsequently made by a defendant during the Probation Department presentenceinvestigation do not impose a duty of inquiry upon a trial court concerning potentialdefenses (see People vPearson, 110 AD3d 1116, 1116 [2013]; People v Phillips, 30 AD3d 911, 911 [2006], lvdenied 7 NY3d 869 [2006]). In any event, we note that defendant did not claimduring his interview that he was intoxicated at the time of the shooting.