| People v Guerrero |
| 2021 NY Slip Op 03217 [194 AD3d 1258] |
| May 20, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Guerrero, Appellant. |
David E. Woodin, Catskill, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered June 14, 2017, convicting defendant upon his plea of guilty of the crimes of burglary inthe second degree and sexual abuse in the first degree.
Defendant was charged by superseding indictment with burglary in the second degree (threecounts), attempted burglary in the second degree, burglary in the third degree and sexual abuse inthe first degree. As relevant here, the charges stemmed from defendant entering the residence of acollege student and subjecting her to sexual contact while she was asleep. In full satisfaction ofthat indictment, defendant was offered the opportunity to plead guilty to one count of burglary inthe second degree and one count of sexual abuse in the first degree with the understanding that hewould be sentenced to a prison term of 15 years upon his conviction of burglary in the seconddegree (followed by five years of postrelease supervision) and to a prison term of seven yearsupon his conviction of sexual abuse in the first degree (followed by 10 years of postreleasesupervision)—said sentences to run concurrently. Defendant also was required to waivehis right to appeal. After being afforded additional time to consider the offer, defendant pleadedguilty in conformity with the plea agreement and, after defendant expressly declined theopportunity to withdraw his plea, the contemplated prison terms were imposed. This appealensued.
Defendant initially challenges the validity of his waiver of the right toappeal—alternatively contending that County Court exceeded its authority in requiring thewaiver in the first instance and, in any event, that the ensuing colloquy was insufficient toestablish that defendant knowingly, intelligently and voluntarily waived his right to appeal.Neither of these arguments has merit.
Unlike the situation presented in People v Sutton (184 AD3d 236 [2d Dept 2020], lv denied35 NY3d 1070 [2020]), County Court did not fashion its own plea agreement over the objectionof the People, and the record does not otherwise support the finding that this was one of thoserare instances where the court stepped out of its role "to safeguard the integrity of the appealwaiver process" by itself insisting upon the waiver of the right to appeal (id. at 243; compare People v Chuan Mu Fu, 186AD3d 620, 621 [2020], lv denied 36 NY3d 1096 [2021]). Additionally, "althoughthe appeal waiver was not mentioned when the terms of the plea agreement were initially placedon the record, defendant was informed during the plea colloquy, and prior to pleading guilty, thata waiver of the right to appeal was part of the plea bargain" (People v Gilbert, 145 AD3d 1196, 1196 [2016] [internal quotationmarks, brackets and citation omitted], lv denied 28 NY3d 1184 [2017]; accord People v Sahler, 168 AD3d1313, 1314 [2019]; see People vInman, 177 AD3d 1167, 1167 [2019]), and the record as a whole otherwise reflects[*2]the beneficial nature of the bargain extended to defendant (see People v Dilworth, 189 AD3d636, 637 [2020], lv denied 36 NY3d 1096 [2021])—further distinguishing theinstant appeal from Sutton and its Second Department progeny (compare People v Adyl K., 187 AD3d1208 [2020], lv denied 36 NY3d 969 [2020]; People v Esposito, 187 AD3d 781 [2020], lv denied 36NY3d 972 [2020]; People v EduardoS., 186 AD3d 1265 [2020], lv denied 36 NY3d 928 [2020]). Accordingly, wedecline to set aside the waiver upon this ground.
Nor are we persuaded that the waiver of appeal was otherwise invalid. County Courtexplained the separate and distinct nature of the right to appeal and distinguished it from thetrial-related rights that defendant would be forfeiting by pleading guilty, and defendant, in turn,indicated his understanding and acceptance thereof (see People v Bonner, 182 AD3d 867, 867 [2020]; People v Salmon, 179 AD3d 1404,1404 [2020]). Additionally, defendant executed a detailed written waiver in open court,confirmed that he had discussed the waiver with counsel and indicated that he had no questionsrelative thereto (see People vThacker, 173 AD3d 1360, 1361 [2019], lv denied 34 NY3d 938 [2019]; People v Tietje, 171 AD3d 1355,1356 [2019], lv denied 33 NY3d 1109 [2019]). As we discern no other infirmities in thewaiver (compare People v Thomas,34 NY3d 545, 562-563 [2019]), "we find that defendant's combined oral and written waiverof appeal was knowing, intelligent and voluntary" (People v Bowden, 177 AD3d 1037, 1038 [2019], lv denied34 NY3d 1157 [2020]). Accordingly, defendant's challenge to the agreed-upon sentence imposedis precluded (see People v Dolison,189 AD3d 1779, 1780 [2020], lv denied — NY3d &mdash, 2021 NY Slip Op97500[U] [Apr. 18, 2021]; People vBurnett, 186 AD3d 1837, 1838 [2020], lv denied 36 NY3d 969 [2020]).
Defendant's challenge to the voluntariness of his plea survives his valid appeal waiver but isunpreserved for our review in the absence of an appropriate postallocution motion (see People v Apelles, 185 AD3d1298, 1299 [2020], lv denied 35 NY3d 1092 [2020]; People v Thompson-Goggins, 182AD3d 916, 918 [2020]). The narrow exception to the preservation requirement was nottriggered, as defendant did not make any statements during the plea colloquy that negated anelement of the charged crimes, were inconsistent with his guilt or otherwise called into questionthe voluntariness of his plea (see Peoplev Gamble, 190 AD3d 1022, 1024 [2021], lv denied 36 NY3d 1097 [2021]; People v Sabin, 179 AD3d 1401,1403 [2020], lv denied 35 NY3d 995 [2020]). Defendant's further assertion—thatthe preservation requirement is inapplicable as he had "no practical ability to object to an error in[the] plea allocution [that was] clear from the face of the record" (People v Peque, 22 NY3d 168, 182[2013], cert denied 574 US 840 [2014])—is unpersuasive.
The alleged error concerned uncertainty among the prosecutor, defense counsel and County[*3]Court regarding defendant's maximum sentencing exposureand the application of Penal Law § 70.30 (1) (e) (i) in the event that he proceeded totrial and consecutive sentences were imposed. County Court adjourned the plea proceeding forone week to resolve this issue and, although the record does not conclusively reflect theconsensus reached in this regard,[FN*] defendant nonetheless proceeded to plead guiltyin conformity with the plea agreement. Further, despite expressing a desire to the ProbationDepartment to "take back his plea," he thereafter assured County Court that he did not wish towithdraw his plea and in fact wanted to proceed with sentencing. As defendant had ampleopportunity to move to withdraw his plea based upon the misinformation allegedly providedregarding application of Penal Law § 70.30 (1) (e) (i) and failed to do so, he cannotnow be heard to complain. Finally, we decline defendant's invitation to take corrective action inthe interest of justice—particularly given that any misstatement as to defendant'ssentencing exposure would not—standing alone—render defendant's otherwisevalid plea involuntary (see People vWhite, 172 AD3d 1822, 1824 [2019], lv denied 33 NY3d 1110 [2019]). To theextent that defendant's related ineffective assistance of counsel claim impacts upon thevoluntariness of his plea, it survives his valid appeal waiver but is similarly unpreserved for ourreview (see People v Blanchard, 188AD3d 1414, 1415-1416 [2020], lv denied 36 NY3d 1055 [2021]; People vSabin, 179 AD3d at 1403). Defendant's remaining arguments, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Garry, P.J., Egan Jr., Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.
Footnote *:The prosecutorindicated—without contradiction and at the time of sentencing—that "the maximum[defendant] can actually serve is 20 years."