| People v Elcine |
| 2007 NY Slip Op 07006 [43 AD3d 1176] |
| September 25, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JerryElcine, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner ofcounsel; Marc T. Ladd on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.),rendered March 9, 2006, convicting him of murder in the second degree, upon his plea of guilty,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was not valid, because the SupremeCourt did not ensure that the defendant "understood the valued right [he] was relinquishing"(People v Billingslea, 6 NY3d 248, 257 [2006]; see People v Moyett, 7 NY3d 892, 893 [2006]). First, during theallocution, the court erroneously stated that the right to appeal was one of the rights the defendantwaived by pleading guilty (see People v Billingslea, 6 NY3d 248 [2006]). Second, even ifthe written form that the defendant signed were valid, the recitations contained therein would notsuffice to validate the purported waiver here, because the record refutes the recitation in thewritten waiver to the effect that the court explained the waiver to the defendant.
Although the defendant's claim regarding the voluntariness of his plea would survive even avalid waiver of the right to appeal (seePeople v Ramirez, 42 AD3d 671 [2007]; People v Williams, 36 AD3d 839, 840 [2007], lv denied 8NY3d 992 [2007]; cf. People v Callahan, 80 NY2d 273, 281 [1992]), thedefendant is, in any event, not entitled to relief on his substantive claims.[*2]
The defendant's claims that his guilty plea was coercedand that the factual allocution was insufficient are not preserved for appellate review. First, as tothe defendant's claim of coercion, the Supreme Court fulfilled its responsibility to inquire into thealleged coercion (see People v Lopez, 71 NY2d 662, 666 [1988]), and it correctlydetermined that the defendant was merely unhappy about the constrained alternatives of pleadingguilty or going to trial. Thus, the "rare case" exception to the preservation rule (see People vLopez, 71 NY2d at 666) does not apply to that claim. Because the defendant did not move towithdraw his plea on this ground, his claim of coercion is unpreserved for appellate review(see People v Vega, 256 AD2d 367, 368 [1998]). Second, because nothing the defendantsaid during his factual allocution cast significant doubt upon his guilt, the "rare case" exceptionto the preservation rule does not apply to that claim either (see People v Lopez, 71 NY2dat 666). The defendant's failure to move to withdraw his plea on the basis of an insufficientfactual allocution renders this claim unpreserved for appellate review (People v Nash, 38 AD3d 684[2007]; People v Burgess, 21 AD3d904 [2005]). In any event, the record of the plea proceeding establishes that the plea wasknowing and voluntary, and nothing in the record would lead us to conclude that the plea wasimprovident or baseless (see People vGutierrez, 35 AD3d 883 [2006]; People v Donigan, 20 AD3d 487 [2005]). Crane, J.P., Goldstein,Skelos and Carni, JJ., concur.