| People v Jackson |
| 2014 NY Slip Op 01018 [114 AD3d 807] |
| February 13, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert L. Jackson, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Braslow, J.), rendered September 8, 2011, convicting him of robbery in the first degreeand kidnapping in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowingly or voluntarilyentered is unpreserved for appellate review because he did not move to vacate his plea orotherwise raise the issue in the County Court (see CPL 470.05 [2]; People v Folger, 110 AD3d736 [2013]; People vNugent, 109 AD3d 625 [2013]; cf. People v Tyrell, 22 NY3d 359 [2013]). In any event, thecontention is without merit. Although the defendant was not advised by the County Courtof each of the federal constitutional rights he was waiving by pleading guilty, a plea ofguilty "will not be invalidated 'solely because the Trial Judge failed to specificallyenumerate all the rights to which the defendant was entitled and to elicit from him or hera list of detailed waivers before accepting the guilty plea' "(People v Tyrell, 22NY3d at 365, quoting People v Harris, 61 NY2d 9, 16 [1983]). Here, since thedefendant was expressly advised by the County Court that a plea of guilty involved thewaiver of certain constitutional rights, and in light of the defendant's background, therationality of the plea, and the other assurances of voluntariness provided on the record,the record as a whole reflected a knowing and voluntary plea of guilty and waiver ofconstitutional rights (see People v Harris, 61 NY2d at 21-22; People vSargent, 100 AD2d 978 [1984]; People v Mitchell, 121 AD2d 403 [1986]).
Contrary to the People's contention, the defendant's challenge to his adjudication as asecond felony offender is not precluded by his purported waiver of his right to appealsince that waiver was invalid (see People v Elmer, 19 NY3d 501 [2012]; People v Salgado, 111 AD3d859 [2013]; People vOquendo, 105 AD3d 447, 447-448 [2013]; People v Grant, 83 AD3d 862, 863 [2011]). During theplea proceeding, the defendant was merely told by the County Court that it "want[ed]"him to waive his [*2]right to appeal and that, aftersentencing, the case would be over (see People v Boustani, 300 AD2d 313, 314[2002] ["bare inquiry" that defendant understood that he was waiving his right to appealwas insufficient to produce a valid waiver]; see also People v Salgado, 111AD3d at 859 ["terse colloquy at the plea allocution failed to sufficiently advise thedefendant of the nature of his right to appeal"]; People v Nugent, 109 AD3d at625-626; People v Gheradi,68 AD3d 892, 893 [2009]). Further, the court's statement—"do youunderstand that when I sentence you, I want you to give up or waive your right toappeal"—failed to make clear that the waiver of the right to appeal was a conditionimposed by the plea agreement, and one to which the defendant was voluntarilyagreeing (see People v Oquendo, 105 AD3d at 447-448 ["By conflating thewaiver of appeal with the sentence to be imposed, the court failed to adequately ensurethat defendant had a 'full appreciation of the consequences of (the) waiver' "]). Lastly, thedefendant's written waiver did not cure the defects in the oral colloquy. To the contrary,it is not clear from this record that the defendant, who did not personally sign the waiver,even read the waiver, discussed it with counsel, or was aware of its contents (seePeople v Callahan, 80 NY2d 273, 283 [1992]; People v Elmer, 19 NY3d 501 [2012]; People v Grant, 83 AD3d862, 863 [2011]; People v McCaskell, 206 AD2d 547, 548 [1994]).Moreover, the waiver did not contain any explanation of the nature of the right to appealor the consequences of waiving it. Rather, it stated that the court and defense counsel hadexplained the right to appeal to the defendant, a representation that was contradicted bythe oral colloquy.
Nevertheless, the defendant's contention that he was improperly adjudicated a secondfelony offender is unpreserved for appellate review (see CPL 470.05 [2];People v Toxey, 86 NY2d 725, 726 [1995]; People v Jackson, 111 AD3d 960 [2013]) and, in anyevent, is without merit. The County Court's failure to specifically ask the defendant if hewished to controvert the allegations in the predicate felony statement (see CPL400.21 [3]) was harmless, as the defendant "admitted he was the person convicted of theprior felony, there is no indication that the defendant intended to claim that his priorconviction was unconstitutionally obtained, and he has not alleged any grounds tocontrovert the predicate felony statement" (People v Flores, 40 AD3d 876, 878 [2007]; see People v Sanabria, 110AD3d 1012 [2013]; Peoplev Chase, 101 AD3d 1141 [2012]; People v McAllister, 47 AD3d 731 [2008]; People vAlston, 289 AD2d 339 [2001]).
The defendant's remaining contentions are unpreserved for appellate review, and, inany event, without merit. Skelos, J.P., Dickerson, Chambers and Miller, JJ., concur.