| People v Newson |
| 2013 NY Slip Op 03347 [106 AD3d 839] |
| May 8, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nathaniel Newson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Chin Brandt, J.), rendered April 26, 2011, convicting him of grand larceny in the fourthdegree and criminal possession of stolen property in the fifth degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although the New York Constitution recognizes a defendant's right to prosecutionby indictment (see NY Const, art I, § 6), both the New York Constitutionand CPL article 195 provide that, under certain circumstances, a defendant may validlywaive that right (see NY Const, art I, § 6; CPL 195.10, 195.20). Contraryto the defendant's contention, he validly waived his right to prosecution by indictment inaccordance with the provisions of the New York Constitution and CPL article 195.
The defendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review because he did not move towithdraw his plea of guilty prior to the imposition of sentence (see People vClarke, 93 NY2d 904, 906 [1999]; People v Cohen, 100 AD3d 919 [2012], lv denied20 NY3d 1060 [2013]). Moreover, this case does not qualify for the narrow, rareexception to the requirement that a claim of an invalid plea of guilty must beappropriately preserved (see People v Lopez, 71 NY2d 662, 665 [1988]). Underthe circumstances of this case, we decline to review the defendant's claim in the interestof justice (see People vKitt, 102 AD3d 984 [2013]).
There is no merit to the defendant's contention that the sentencing court failed toconduct an adequate inquiry into the validity of the defendant's re-arrest and, thus, erredin imposing an enhanced sentence based upon his violation of a no re-arrest condition ofhis plea (see People vGuillen, 37 AD3d 493 [2007]; see also People v Outley, 80 NY2d 702,713 [1993]).
We agree with the defendant that the record does not demonstrate that he knowingly,voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18NY3d 257, 264 [2011]; [*2]People v Lopez, 6 NY3d248, 256 [2006]). Accordingly, we are not barred from reaching the merits of thedefendant's contention that the sentence imposed was excessive, which is the onlycontention raised herein that would be precluded by a valid waiver of the defendant'sright to appeal. Nonetheless, the sentence imposed was not excessive (see People vSuitte, 90 AD2d 80 [1982]). Rivera, J.P., Dickerson, Leventhal and Roman, JJ.,concur.