| People v Briggs |
| 2014 NY Slip Op 01927 [115 AD3d 1245] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vLatasha D. Briggs, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.),rendered March 19, 2010. The judgment convicted defendant, upon her plea of guilty, ofcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty ofcriminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]), defendant contends that her plea was not knowingly, voluntarily, andintelligently entered. According to defendant, her equivocal responses during the pleacolloquy negated her intent to sell, which is an essential element of the crime to whichshe pleaded guilty, and the court failed to conduct the requisite further inquiry to ensurethat the plea was knowing, voluntary and intelligent. We note at the outset thatdefendant's waiver of the right to appeal is invalid and thus does not encompass hercontention (see People vMcCoy, 107 AD3d 1454, 1454-1455 [2013], lv denied 22 NY3d 957[2013]). Although the record establishes that defendant executed a written waiver andCounty Court ensured that defendant had signed that written waiver voluntarily, thecourt's "failure to make any inquiry on the record as to whether the defendant understoodthe implication of the appellate rights [s]he was waiving renders the waiver invalid" (People v Grant, 83 AD3d862, 862-863 [2011], lv denied 17 NY3d 795 [2011]; see McCoy,107 AD3d at 1454; seegenerally People v Bradshaw, 18 NY3d 257, 264-267 [2011]). Nevertheless,defendant failed to preserve her contention for our review by moving to withdraw theplea or to vacate the judgment of conviction (see People v Theall, 109 AD3d 1107, 1108 [2013]). Thiscase does not fall within the rare exception to the preservation rule set forth in Peoplev Lopez (71 NY2d 662, 666 [1988]) because, " '[a]lthough the initial statements ofdefendant during the factual allocution may have negated the essential element of h[er]intent to [sell], h[er] further statements removed any doubt regarding that intent' "(Theall, 109 AD3d at 1108). In any event, the record establishes that the courtconducted a " 'further inquiry to ensure that defendant understood the nature of thecharge and that the plea was intelligently entered' " (id.). Present—Smith,J.P., Fahey, Peradotto, Carni and Sconiers, JJ.