| People v Borden |
| 2012 NY Slip Op 00259 [91 AD3d 1124] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Travis K.Borden, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Franklin County (Clute, J.),entered June 17, 2010, convicting defendant upon his plea of guilty of the crime of criminalsexual act in the third degree.
Defendant, then 31 years old, initially was charged with rape in the third degree, criminalsexual act in the third degree, endangering the welfare of a child and unlawfully dealing with achild based upon allegations that he provided his live-in girlfriend's then 15-year-old daughterwith alcohol and engaged in sexual relations with her. Defendant thereafter waived indictmentand, in full satisfaction of the foregoing charges and with the People's consent, pleaded guilty to asuperior court information charging him with a single count of criminal sexual act in the thirddegree. In conjunction therewith, the People agreed to recommend a sentence of five years ofprobation. After reviewing the presentence investigation report, County Court sentenceddefendant to four years in prison followed by 10 years of postrelease supervision. Defendant nowappeals contending, among other things, that his plea was involuntary and the sentence imposedwas harsh and excessive.
Initially, we agree with defendant that his waiver of the right to appeal was invalid. Only apassing reference was made to the waiver prior to defendant pleading guilty, and at no timeduring the plea colloquy did County Court explain either the nature of the waiver or the [*2]separate and distinct rights being forfeited thereby (see People v Klages, 90 AD3d1149, 1150 [2011]; People vMosher, 79 AD3d 1272, 1273 [2010], lv denied 16 NY3d 834 [2011]; cf. People v Headspeth, 78 AD3d1418, 1419 [2010]). Further, although defendant executed a written waiver ofappeal—after his plea was accepted and outside of court—there is no indication onthe record that defendant discussed this issue with counsel or otherwise understood the right thathe was waiving (cf. People vWilliams, 76 AD3d 1141, 1142 [2010]; People v Middleton, 72 AD3d 1336, 1337 [2010]). Under thesecircumstances, we cannot conclude that defendant's waiver was knowing, intelligent andvoluntary (see People v Riddick, 40AD3d 1259, 1259-1260 [2007], lv denied 9 NY3d 925 [2007]; compare People v McDuffie, 89 AD3d1154, 1156 [2011]).
As to defendant's remaining arguments, his challenge to the voluntariness and factualsufficiency of his plea, as well as his claim that County Court erred in failing to conduct acompetency hearing prior to accepting his plea, are not preserved for our review in light of hisfailure to move to withdraw his plea or vacate the judgment of conviction (see People vKlages, 90 AD3d at 1150; People vJones, 88 AD3d 1029 [2011]; People v Davis, 84 AD3d 1645, 1645 [2011], lv denied 17NY3d 815 [2011]; People vBudwick, 82 AD3d 1447, 1448 [2011], lv denied 17 NY3d 857 [2011]; People v Coons, 73 AD3d 1343,1344 [2010], lv denied 15 NY3d 803 [2010]). Moreover, the narrow exception to thepreservation requirement was not triggered here, as defendant did not make any statementsduring the plea colloquy—"which included an inquiry into the nature of defendant's mental[health issues], the medications [he] was taking and [his] ability to comprehend the proceedings"(People v Stoddard, 67 AD3d1055, 1056 [2009], lv denied 14 NY3d 806 [2010])—that were inconsistentwith his guilt or otherwise called into question the voluntariness of his plea (see People v Board, 75 AD3d 833,833 [2010]; People v Lopez, 74AD3d 1498, 1499 [2010]). Defendant's related claim that he was denied the effectiveassistance of counsel also is unpreserved for our review (see People v Macduff, 83 AD3d 1292, 1292-1293 [2011]; People v Fiske, 68 AD3d 1149,1150 [2009], lv denied 14 NY3d 800 [2010]).
Defendant next contends that his plea was induced by what turned out to be the People'sillegal sentencing recommendation[FN1]and, therefore, the plea should have been vacated in its entirety or, alternatively, he should havebeen permitted to withdraw his plea. As to this latter claim, we need note only that defendantnever asked to withdraw his plea upon this or any other ground. To the extent that defendantargues that the erroneous sentencing recommendation bears upon the voluntariness of his plea,this argument is unpreserved for our review and, in our view, reversal in the interest of justice isunwarranted (see People v Lopez,51 AD3d 1210, 1210-1211 [2008]).
To be sure, "when a defendant's guilty plea has been induced by a sentencing promise whichthe court later determines is inappropriate [or illegal], that court must afford the defendant theopportunity to withdraw the plea or honor the plea-inducing promise" (People v Martin, 17 AD3d 775,776 [2005]). Here, the People agreed that they would make a specific sentencingrecommendation and did so. County Court, however, made no such commitment. Rather, [*3]County Court carefully delineated the full range of sentencingoptions at its disposal (including sentencing defendant to the maximum prison term that heultimately received), cautioned defendant that the People's sentencing recommendation wassimply that—a recommendation—and repeatedly made clear that it was not makingany promise or commitment as to sentencing (see People v Lopez, 51 AD3d at 1211;compare People v Martin, 17 AD3d at 776). Notwithstanding County Court'sadmonitions,[FN2]defendant nonetheless elected to plead guilty. Under these circumstances, we discern no need tovacate defendant's plea.
Defendant's remaining contentions, including his claim that the sentence imposed was harshand excessive, have been examined and found to be lacking in merit.
Peters, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The People agreed to (and did infact) recommend a sentence of five years of probation, but the minimum term of probation for afelony sexual assault is 10 years (see Penal Law § 60.01 [2] [a] [i]; § 65.00[3] [a] [iii]).
Footnote 2: Notably, prior to acceptingdefendant's plea, County Court stated, "I just want you to really know for sure that I'm notpromising you that you won't get locked up. I'm not promising. I'm letting you know that it couldbe state prison . . . If you enter a guilty plea, it's without any assurance about whatyour sentence would be."