| People v Rosseter |
| 2009 NY Slip Op 03796 [62 AD3d 1093] |
| May 14, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShaneRosseter, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Washington County (Berke,J.), rendered February 13, 2007, convicting defendant upon his plea of guilty of the crimes ofrape in the first degree, sexual misconduct and forcible touching.
In July 2006, defendant was charged in a seven-count indictment with committing numeroussexual-related offenses involving three different victims, all of whom were under the age of 16.Pursuant to a negotiated plea agreement, defendant pleaded guilty to the three counts in theindictment that charged him with the forcible rape of an 11-year-old girl, sexual misconduct witha 15-year-old girl and the forcible touching for sexual gratification of a 14-year-old girl.Defendant was subsequently sentenced on his conviction for rape in the first degree to a prisonterm of 3 to 9 years, and one year on each of the two remaining counts, with all three sentencesto run concurrently. In addition, at the time he entered his plea, defendant, after conferring withcounsel, waived his right to appeal, both orally and in writing. Defendant now appeals,challenging the validity of the waiver of his right to appeal, the voluntariness of his guilty plea,and the excessiveness of his sentence.
We affirm. At the time of the entry of his guilty plea, defendant's counsel was directed byCounty Court to review with defendant the provisions contained in the written waiver of appealform. After completion of this review, the court questioned defendant to ensure that he [*2]fully understood that he was waiving his right to appeal. Afterindicating that he understood that he was giving up his right to appeal this conviction, defendantconferred with counsel and signed the written form that waived his right to appeal on certainenumerated grounds, including the sufficiency of his plea allocution and the severity of hissentence (see People v Ramos, 7NY3d 737, 738 [2006]; People vMcMillan, 55 AD3d 1064, 1066 [2008], lv denied 11 NY3d 899 [2008]; People v Getter, 52 AD3d 1117,1118 [2008]). Taken as an integrated whole, this record establishes that defendant, with thebenefit of counsel, entered a knowing, voluntary and intelligent waiver of his right to appeal (see People v Jeske, 55 AD3d1057, 1057-1058 [2008], lv denied 11 NY3d 898 [2008]; People v Collins, 53 AD3d 932,933 [2008], lv denied 11 NY3d 831 [2008]).
While defendant's waiver of his right to appeal precludes any challenge to the legalsufficiency of his plea, he may still pursue on appeal his claim that his guilty plea wasinvoluntarily rendered (see People vRubeo, 60 AD3d 1206, 1207 [2009]; People v Morrishaw, 56 AD3d 895, 896 [2008], lv denied12 NY3d 761 [2009]; People vQuinones, 51 AD3d 1226, 1227 [2008], lv denied 10 NY3d 938[2008]).[FN*] In effect, defendant argues that his plea was not voluntary because, during his plea allocution forthe crime of rape in the first degree, he only admitted to having sexual intercourse with thevictim and did not acknowledge at any time to using force. However, in response to CountyCourt's inquiry as to whether, at the time they were engaged in sexual intercourse, the victim"was resisting," defendant answered, "Yes." In addition, during the allocution, County Courtconfirmed that defendant was physically fit, enjoyed good mental health and had not consumedany drugs, medication or alcohol that compromised his ability to understand what was occurringduring that proceeding. The court also established that defendant had sufficient time to conferwith counsel prior to entering the plea and understood that, by pleading guilty, he was giving uphis right to a trial by jury. The court further established that defendant had not been threatened,forced or coerced into entering the plea, and that he was aware that, upon his release from prison,given the nature of the crimes for which he stood convicted, he would be required to register as asex offender. In short, the record clearly establishes that defendant understood the full import ofthe proceeding, was satisfied with counsel, and made an intelligent and voluntary decision toenter a guilty plea (see People vPerry, 50 AD3d 1244, 1245 [2008], lv denied 10 NY3d 963 [2008]; People v Kennedy, 46 AD3d1099, 1100 [2007], lv denied 10 NY3d 841 [2008]; People v Coss, 19 AD3d 943, 943[2005], lv denied 5 NY3d 805 [2005]).
At sentencing, defendant expressed his desire to withdraw his plea because he "want[ed] tobe able to take it to trial." County Court, in denying the application, concluded that defendant'splea was knowingly, voluntarily and intelligently entered. Given that we find no "evidence ofinnocence, fraud or mistake in the inducement of the plea," County Court did not abuse itsdiscretion by summarily denying defendant's motion to withdraw his plea (People v [*3]Thomas, 50 AD3d 1315, 1316 [2008]; see People vAtkinson, 58 AD3d 943, 943 [2009]; People v McMillan, 55 AD3d at 1066;People v Quinones, 51 AD3d at 1226; People v Nunez, 35 AD3d 902, 903 [2006], lv denied 8NY3d 883 [2007]).
Finally, defendant's challenge to his sentence and, in particular, the denial of youthfuloffender status is foreclosed by his valid waiver of his right to appeal (see People v Ohl, 60 AD3d 1201,1202 [2009]; People v Ibralic, 54AD3d 1073, 1073 [2008], lv denied 11 NY3d 832 [2008]; People v Getter,52 AD3d at 1117; People vBaldwin, 36 AD3d 1024, 1025 [2007]).
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant states that he nevermoved to vacate his plea, but argues that this issue should be reviewed on appeal because, duringthe plea allocution, he negated an essential element of the crime of rape in the first degree. Whilewe do not agree with his description of his allocution, we do note that defendant, prior to beingsentenced, moved to withdraw his plea and, as such, his claim regarding its voluntariness hasbeen preserved (see People v Rubeo, 60 AD3d at 1207).