| People v Judd |
| 2013 NY Slip Op 07626 [111 AD3d 1421] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael J. Judd, Jr., Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedMarch 7, 2011. The judgment convicted defendant, upon his plea of guilty, of attemptedburglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by vacating the fine and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of attempted burglary in the second degree (Penal Law §§ 110.00,140.25 [2]). Initially, we agree with defendant that his waiver of the right to appeal isinvalid inasmuch as " 'the minimal inquiry made by County Court was insufficient toestablish that the court engage[d] the defendant in an adequate colloquy to ensure that thewaiver of the right to appeal was a knowing and voluntary choice' " (People v Jones, 107 AD3d1589, 1589 [2013], lv denied 21 NY3d 1075 [2013]; see People v Amir W., 107AD3d 1639, 1640 [2013]).
By pleading guilty, defendant waived his contention that he was improperlyarraigned on the special information based on the court's error in stating that he would bepleading guilty to attempted burglary in the third degree. A " 'guilty plea . . .results in a forfeiture of the right to appellate review of any nonjurisdictional defects inthe proceedings' " (People vLeary, 70 AD3d 1394, 1395 [2010], lv denied 14 NY3d 889 [2010],quoting People v Fernandez, 67 NY2d 686, 688 [1986]; see People v Releford, 73AD3d 1437, 1438 [2010], lv denied 15 NY3d 808 [2010]), which includeany defect in the arraignment procedure (see People v Williams, 25 Misc 3d 15, 18 [2009]; see generally People v Roberts,6 AD3d 942, 943 [2004], lv denied 3 NY3d 662 [2004]).
Although the waiver of the right to appeal was invalid and thus does not bardefendant's challenge to the guilty plea, defendant failed to preserve for our review hischallenge to the factual sufficiency of the plea colloquy (see People v Lopez, 71NY2d 662, 665 [1988]; Peoplev Spears, 106 AD3d 1534, 1535 [2013]). Contrary to defendant's furthercontention, this case does not fall within the rare exception to the preservationrequirement set forth in Lopez because nothing in the plea allocution calls intoquestion the voluntariness of the plea or casts "significant doubt" upon his [*2]guilt (71 NY2d at 666; see People v Lewandowski, 82 AD3d 1602, 1602 [2011]).
With respect to defendant's further contention that he was denied effective assistanceof counsel, such a claim survives a plea of guilty only if "the plea bargaining process wasinfected by [the] allegedly ineffective assistance or [if] defendant entered the pleabecause of his attorney['s] allegedly poor performance" (People v Robinson, 39 AD3d1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internal quotation marksomitted]; see People vLugg, 108 AD3d 1074, 1075 [2013]; People v Wright, 66 AD3d 1334, 1334 [2009], lvdenied 13 NY3d 912 [2009]). Here, defendant failed to establish that the plea wasinfected by or was the result of the allegedly ineffective acts of his attorney. In any event,the record establishes that defendant received "an advantageous plea and nothing in therecord casts doubt on the apparent effectiveness of counsel" (People v Ford, 86NY2d 397, 404 [1995]).
Defendant further contends that the court erred at sentencing in denying his requestto redact the presentence report by changing the initial charge listed in that report, and heasks this Court to remit the matter to County Court for further proceedings to amend thereport and ensure its accuracy. "[A]bsent any indication that the court relied uponallegedly erroneous information in the presentence report in imposing the sentence" (People v Jaramillo, 97 AD3d1146, 1148 [2012], lv denied 19 NY3d 1026 [2012]), we perceive no reasonto grant defendant's request for that relief. In addition, defendant failed to preserve forour review his contention that he was not properly adjudicated a second violent felonyoffender based on the failure of the People and the court to comply with CPL 400.15 (see People v Hall, 82 AD3d1619, 1620 [2011], lv denied 16 NY3d 895 [2011]; see also People v Butler, 96AD3d 1367, 1368 [2012], lv denied 20 NY3d 931 [2012]; see generallyPeople v Pellegrino, 60 NY2d 636, 637 [1983]). In any event, "[t]he statutorypurposes for filing a predicate statement (CPL 400.21) have been satisfied, to wit:apprising the court of the prior conviction and providing defendant with reasonablenotice and an opportunity to be heard. The People's failure to file a predicate statementwas harmless, and remanding for filing and resentencing would be futile and pointless"(People v Bouyea, 64 NY2d 1140, 1142 [1985]).
We agree, however, with defendant's additional contention that the sentence isexcessive insofar as it imposes a fine in addition to a term of incarceration andpostrelease supervision. Consequently, we modify the judgment by vacating the fine. Asmodified, the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra,Fahey, Carni and Whalen, JJ.