| People v Conley |
| 2018 NY Slip Op 03877 [161 AD3d 1486] |
| May 31, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Reno A. Conley, Appellant. |
Amanda FiggsGanter, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 22, 2016, convicting defendant upon his plea of guilty of the crime of forgery inthe second degree.
Defendant was charged in a five-count indictment with forgery in the second degree andother unrelated crimes stemming from his theft of a credit card from a woman's purse andsubsequent use of it to make a purchase at a market. Pursuant to a negotiated plea agreement thatincluded a waiver of appeal and satisfied all charges in the indictment and numerous othercharges, defendant pleaded guilty to forgery in the second degree and signed a written waiver of appeal. County Court thereafter imposed theagreed-upon prison sentence of 2
We affirm. Defendant's contention that his guilty plea was not knowing, voluntary andintelligent survives his unchallenged appeal waiver but was not preserved by an appropriatepostallocution motion on this ground, despite an adequate opportunity to do so (see CPL220.60 [3]; People v Forest, 141AD3d 967, 968 [2016], lv denied 28 NY3d 1145 [2017]).[FN*] Moreover, [*2]the narrow exception to the preservation rule is inapplicable (see People v Williams, 27 NY3d212, 220 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]). During the pleaallocution, defendant admitted that he used the victim's credit card, but initially stated that he"didn't sign nothing" and "[n]ever signed the receipt." County Court engaged defendant in afurther inquiry, explaining that the People were in possession of a signed receipt, whichdefendant was captured on video signing. After defendant conferred with counsel, he admittedunder oath that he had signed the receipt without authorization and pleaded guilty. Thus, thecourt satisfied its duty of further inquiry and ensured that defendant admitted all of the elementsof the crime, establishing that the guilty plea was knowing, voluntary and intelligent (seePeople v Lopez, 71 NY2d at 666-668; People v Young, 158 AD3d 955, 956 [2018]; see also People v Cuevas, 140 AD3d1313, 1317 [2016]). "Having failed to express, in any way, dissatisfaction with the court'sremedial action [despite ample opportunity to do so prior to imposition of sentence], defendanthas waived any further challenge to the allocution, and thus no issue is preserved" (People vLopez, 71 NY2d at 668; see People v Williams, 27 NY3d at 222-223).
With regard to the sentence, the record belies defendant's claim that County Court failed toexercise its discretion in declining to grant judicial diversion (see CPL 216.05 [1]). Tothat end, the court considered defendant's request and determined that he was not an appropriatecandidate, and defendant was "not automatically entitled to judicial diversion" (People v Clarke, 155 AD3d 1242,1243 [2017] [internal quotation marks and citation omitted], lv denied 30 NY3d 1114[2018]; cf. CPL 216.05 [4]), which was never a part of the plea agreement. Hischallenges to the court's discretionary decision not to have him evaluated for, and to deny,judicial diversion and to the agreed-upon sentence as harsh and excessive are precluded by hiswaiver of appeal (see People vWood, 150 AD3d 1544, 1545 [2017]). We have examined defendant's remaining claimsand determined that they lack merit.
Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:County Court set forth that awaiver of appeal was a condition of the plea agreement and confirmed that defendant understoodits consequences and separate and distinct nature, and defendant voluntarily agreed to thiscondition. Thus, we find that the oral colloquy establishes that the waiver of appeal wasknowing, voluntary and intelligent (seePeople v Lopez, 6 NY3d 248, 256 [2006]), notwithstanding that defendant did notconfirm that he had read and understood the written waiver of appeal that he acknowledgedsigning, in which defense counsel also joined (see People v Nichols, 155 AD3d 1186, 1187 [2017]; People v Empey, 144 AD3d 1201,1202-1203 [2016], lv denied 28 NY3d 1144 [2017]).