| People v Barber |
| 2014 NY Slip Op 03061 [117 AD3d 1430] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJurell D. Barber, Appellant. (Appeal No. 1.) |
Peter J. Digiorgio, Jr., Utica, for defendant-appellant.
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 September 8, 2010. The judgment convicted defendant, upon his plea of guilty,of burglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of burglary in the first degree (Penal Law § 140.30[2]) and, in appeal No. 2, defendant appeals from a judgment convicting him upon hisplea of guilty of criminal possession of a weapon in the second degree(§ 265.03 [3]). Defendant contends in both appeals that his waiver of theright to appeal is invalid. We reject that contention. The record establishes that CountyCourt " '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 Ripley, 94 AD3d1554, 1554 [2012], lv denied 19 NY3d 976 [2012]; see People v Wright, 66 AD3d1334, 1334 [2009], lv denied 13 NY3d 912 [2009]), and that defendantunderstood that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty (see People v Lopez, 6 NY3d 248, 256 [2006];Ripley, 94 AD3d at 1554; People v Korber, 89 AD3d 1543, 1543 [2011], lvdenied 19 NY3d 864 [2012]). Defendant's valid waiver of the right to appealencompasses his challenge to the severity of the sentence in appeal No. 1 (seeLopez, 6 NY3d at 256).
Although defendant's contention in appeal No. 2 that his guilty plea was notknowing, voluntary and intelligent survives his waiver of the right to appeal, defendantfailed to preserve that contention for our review inasmuch as he did not move towithdraw the plea or to vacate the judgment of conviction (see People v Theall, 109 AD3d1107, 1107-1108 [2013]; People v Rossborough, 101 AD3d 1775, 1776 [2012]; People v Russell, 55 AD3d1314, 1314-1315 [2008], lv denied 11 NY3d 930 [2009]), and this case doesnot fall within the narrow exception to the preservation requirement (see People vLopez, 71 NY2d 662, 666 [1988]). Although defendant stated during the pleacolloquy that he possessed the weapon in his home, he further admitted that he "ha[d]been previously convicted of a[ ] crime" (Penal Law § 265.02 [1];see § 265.03 [3]; see generally People v Hughes, 22 NY3d 44, 49-50[2013]). Where, as here, "the defendant has a previous conviction, the [home exception]never comes into play, [and] its inapplicability is not an [*2]element of the offense" (People v Jones, 22 NY3d53, 60 [2013]).
Finally, defendant contends in appeal No. 2 that the indictment was jurisdictionallydefective because it did not allege that the home exception was inapplicable (seePenal Law § 265.03 [3]). Although that contention survives his waiver ofthe right to appeal (see People v Iannone, 45 NY2d 589, 600-601 [1978]; People v Holmes, 101 AD3d1632, 1633 [2012], lv denied 21 NY3d 944 [2013]; People v Crummell, 84 AD3d1393, 1394 [2011], lv denied 17 NY3d 858 [2011]), it is without merit(see Jones, 22 NY3d at 60). Present—Scudder, P.J., Centra, Fahey,Peradotto and Whalen, JJ.