| People v Brown |
| 2014 NY Slip Op 01869 [115 AD3d 1204] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v IkikoK. Brown, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered November 24, 2010. The judgment convicted defendant, upon his plea ofguilty, of robbery in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of two counts of robbery in the first degree (Penal Law § 160.15 [1], [2]),defendant contends that his plea to count one of the indictment was involuntarily enteredbecause County Court, during the plea colloquy, misstated the law regarding accompliceliability. We note, however, that the alleged misstatement was made after defendantpleaded guilty and thus could not have rendered defendant's plea involuntary. In anyevent, because defendant did not move to withdraw his plea or to vacate the judgment ofconviction on that ground, defendant's challenge to the voluntariness of his plea isunpreserved for our review (seePeople v Bloom, 96 AD3d 1406, 1406 [2012], lv denied 19 NY3d 1024[2012]).
Defendant further challenges the voluntariness of the plea on the ground that hemade a statement during the plea colloquy that negated an element of the crime, thusrendering applicable the exception to the preservation rule in People v Lopez (71NY2d 662, 666 [1988]). We reject that contention. Defendant stated that he was in policecustody when his codefendant, in an attempt to flee following the robbery, shot a deputysheriff in the foot and thereby caused him serious physical injury. According todefendant, his statement about being in custody negated an element of robbery in the firstdegree under Penal Law § 160.15 (1), as charged in count one, which provides thata person is guilty of that crime when "he forcibly steals property and when, in the courseof the commission of the crime or of immediate flight therefrom, he oranother participant in the crime . . . [c]auses serious physical injury toany person who is not a participant in the crime" (emphasis added).
The exception to the preservation rule set forth in Lopez permits reviewwhen the "factual recitation negates an essential element of the crime pleaded to" and thecourt fails to make a "further inquiry to ensure that defendant understands the nature ofthe charge" (id. at 666). Here, [*2]althoughdefendant's statement about being in custody may have raised an issue of fact whether thecodefendant caused serious injury to the deputy during the immediate flight from therobbery (see People v Irby, 47 NY2d 894, 895 [1979]), it did not negate anelement of the crime. In any event, after defendant made that statement, the courtinquired further of defendant, who admitted that the shooting took place during theimmediate flight from the robbery. We thus conclude that defendant's factual recitation,when viewed in its entirety, did not negate an essential element of the crime chargedunder count one of the indictment.
Finally, defendant contends that his sentence—an aggregate term of 30 years'imprisonment plus five years of postrelease supervision—is unduly harsh andsevere considering that he has a minimal prior record (one misdemeanor, for which hewas sentenced to community service), his participation in the crimes was limited to beingthe getaway driver, and, unlike his codefendant, he immediately surrendered to the policeand accepted responsibility for his wrongdoing. Because defendant waived his right toappeal, however, he is precluded from asking us to modify his sentence as a matter ofdiscretion in the interest of justice (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Suttles, 107 AD3d1467, 1468 [2013], lv denied 21 NY3d 1046 [2013]). We reject defendant'scontention that his waiver of the right to appeal does not encompass his challenge to theseverity of his sentence because the court failed to inform him of the maximum sentencehe could receive. " '[T]he requirement that a defendant be apprised of [the] maximumsentence in order for a waiver [of the right to appeal] to be valid does not apply in asituation such as this where there is a specific sentence promise at the time of the waiver'" (People v Semple, 23AD3d 1058, 1059 [2005], lv denied 6 NY3d 852 [2006]; cf. People vHidalgo, 91 NY2d 733, 737 [1998]). We note that the certificate of convictionincorrectly recites that defendant was convicted of two counts of robbery in the firstdegree under Penal Law § 165.15 (1), and it must therefore be amended to reflectthat he was convicted of one count under that subdivision and one count under PenalLaw § 165.15 (2) (seegenerally People v Saxton, 32 AD3d 1286, 1286-1287 [2006]).Present—Centra, J.P., Peradotto, Lindley, Sconiers and Whalen, JJ.