| People v Martinez |
| 2013 NY Slip Op 02978 [105 AD3d 1458] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EricX. Martinez, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.),entered September 7, 2011. The judgment convicted defendant, upon his plea of guilty,of rape in the first degree and forcible touching (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of rape in the first degree (Penal Law § 130.35 [1]) and two counts offorcible touching (§ 130.52). We agree with defendant that the waiver of the rightto appeal was not valid inasmuch as the record does not establish that it was knowingly,intelligently and voluntarily entered (see People v Bradshaw, 18 NY3d 257, 259 [2011]).Although the prosecutor engaged in a colloquy with defendant regarding the waiver ofthe right to appeal, County Court failed to address the waiver with defendant and we thusconclude that the court "took no measures to ensure that [defendant] . . .understood . . . and . . . validly waiv[ed] his right to appeal"(People v Bradshaw, 76AD3d 566, 568 [2010], affd 18 NY3d 257 [2011]).
We further conclude, however, that defendant's contention that the court erred indenying his motion seeking to sever three counts from the remaining 11 counts of theindictment was forfeited by his guilty plea (see People v Konieczny, 2 NY3d 569, 572 [2004];People v Hansen, 95 NY2d 227, 230 [2000]). We reject defendant's furthercontention that the court erred in refusing to suppress his statement to the police, whichwas given without the assistance of an interpreter. The court credited the testimony of thepolice investigator who took the statement that she had no trouble communicating withdefendant and that he responded appropriately to her questions. Defendant's oralstatement was reduced to writing, and our review of that written statement establishesthat defendant responded appropriately to the investigator's questions. "The [suppression]court's determination is entitled to deference and will not be disturbed where it issupported by the record" (People v Sanders, 74 AD3d 1896, 1896 [2010]; seegenerally People v Prochilo, 41 NY2d 759, 761 [1977]). The sentence is not undulyharsh or severe. Present—Scudder, P.J., Peradotto, Sconiers, Valentino andMartoche, JJ.