| People v Woods |
| 2008 NY Slip Op 04004 [51 AD3d 1061] |
| May 1, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DeborahWoods, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 30, 2007, convicting defendant upon her plea of guilty of the crime of criminalcontempt in the first degree.
Defendant waived indictment and, pursuant to a negotiated agreement, pleaded guilty to asuperior court information charging her with criminal contempt in the first degree. The pleaagreement included a waiver of the right to appeal. Defendant thereafter was sentenced to timeserved plus five years of probation, and this appeal ensued.
Initially, we reject defendant's contention that the superior court information wasjurisdictionally defective, a claim which survives a valid appeal waiver (see People v Simmons, 27 AD3d786, 786-787 [2006], lv denied 7 NY3d 763 [2006]) and may be raised for the firsttime on appeal (see People v Welch,46 AD3d 1228, 1229 [2007]). Even a cursory review of the superior courtinformation—which expressly cited Penal Law § 215.51 (b) (iv) and, hence,incorporated by reference allegations of all the elements of the crime charged—wassufficient to afford defendant fair notice of the charges against her (see People vD'Angelo, 98 NY2d 733, 735 [2002]; People v Ray, 71 NY2d 849, 850 [1988];People v Brickley, 306 AD2d 551, 552-553 [2003], lv denied 100 NY2d 641[2003]).[*2]
Defendant next argues that her plea allocution wasfactually deficient and that she did not validly waive her appeal rights. However, the recordreflects that defendant was apprised of the separate and distinct nature of her right to appeal (see People v Lopez, 6 NY3d 248,256-257 [2006]; cf. People vPopson, 28 AD3d 870, 871 [2006]), had discussed the appeal waiver with counsel priorto the plea and had an opportunity to confer with counsel during the plea (cf. People v Riddick, 40 AD3d1259, 1259-1260 [2007], lv denied 9 NY3d 925 [2007]), and that she understood thenature of the right being forfeited (cf.People v Edwards, 37 AD3d 871, 872 [2007], lv denied 8 NY3d 945 [2007]).While it is clearly preferable for County Court to have also explicitly asked if she agreed towaive her appeal rights (see People vCrowley, 34 AD3d 866, 867 [2006], lv denied 7 NY3d 924 [2006]), we arepersuaded, on the record before us, that defendant effected a valid waiver of the right to appeal.Such waiver, in turn, precludes her challenge to the factual sufficiency of her plea allocution (see People v Ramirez, 45 AD3d1108 [2007]; People v Jackson,39 AD3d 1089, 1090 [2007], lv denied 9 NY3d 845 [2007]). Were we to reach thisissue, we would conclude that defendant's argument on this point is lacking in merit.
As to defendant's claims challenging the voluntariness of the plea, her failure to move towithdraw the plea or vacate the judgment of conviction renders these arguments unpreserved forour review (see People v Jennings,46 AD3d 1029 [2007], lv denied 10 NY3d 766 [2008]; People v Guthinger, 36 AD3d1075 [2007], lv denied 8 NY3d 923 [2007]). Moreover, the narrow exception to thepreservation requirement is not triggered here inasmuch as defendant did not make statementsduring the plea allocution that cast any doubt upon either her guilt or the voluntariness of her pleaor which otherwise tended to negate a material element of the crime charged (see People vRiddick, 40 AD3d at 1260; People vWilliams, 25 AD3d 927, 929 [2006], lv denied 6 NY3d 840 [2006]).Accordingly, the judgment of conviction should be affirmed.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.