| People v Williams |
| 2013 NY Slip Op 00517 [102 AD3d 1055] |
| January 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v IsiahWilliams, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Daniel Johnson of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Tompkins County (Rowley,J.), rendered September 8, 2009, convicting defendant upon his plea of guilty of thecrime of scheme to defraud in the first degree.
Defendant and a codefendant were charged in a 26-count indictment with numeroustheft-related crimes. In connection therewith, defendant entered into a plea memorandumsetting forth the terms of a plea agreement, which included waiving his right to appeal.Thereafter, he pleaded guilty to the crime of scheme to defraud in the first degree in fullsatisfaction of the indictment. At some point on that same date, he also executed aseparate written waiver of his right to appeal. In accordance with the terms of the pleaagreement, he was sentenced as a predicate felon to 1½ to 3 years in prison, whichsentence was to run concurrently with two other sentences he was then serving.Defendant now appeals.
Initially, we agree with defendant that the waiver of his right to appeal was invalid.Although the written waiver was comprehensive and included a provision indicating thatit was separate from the other rights that he was forfeiting as a result of his guilty plea,absolutely no mention of such waiver was made during the plea proceedings.Consequently, it is impossible to ascertain if defendant understood the nature orramifications of the waiver or the rights he was forfeiting. Under these circumstances,this record does not provide us with a sufficient basis for concluding that the waiver wasknowing, voluntary and intelligent (see People v Bradshaw, 18 [*2]NY3d 257, 265 [2011]; People v Burton, 93 AD3d 949, 949 [2012], lvdenied 19 NY3d 958 [2012]; People v Borden, 91 AD3d 1124, 1125 [2012], lvdenied 19 NY3d 862 [2012]) and, therefore, we find it to be unenforceable.
Defendant next challenges the factual sufficiency of the plea allocution. While notprecluded by the invalid waiver, this issue is unpreserved as the record before usindicates that defendant has failed to move to withdraw his plea or vacate the judgmentof conviction (see People vTeele, 92 AD3d 972, 972 [2012]; People v Klages, 90 AD3d 1149, 1150 [2011], lvdenied 18 NY3d 925 [2012]). Moreover, the exception to the preservationrequirement is inapplicable inasmuch as defendant did not make any statements that wereinconsistent with his guilt or that called into question the voluntariness of his plea(see People v Teele, 92 AD3d at 972; People v Jones, 88 AD3d 1029, 1029 [2011], lvdenied 18 NY3d 859 [2011]). Therefore, we find no reason to disturb the judgmentof conviction.
Mercure, J.P., Lahtinen and Garry, JJ., concur. Ordered that the judgment isaffirmed.