| People v Blacknell |
| 2014 NY Slip Op 03396 [117 AD3d 1564] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGerrard Blacknell, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered December 18, 2006. The judgment convicted defendant, upon his plea of guilty,of attempted aggravated assault upon a police officer or a peace officer.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted aggravated assault upon a police officer or a peace officer (Penal Law§§ 110.00, 120.11), defendant contends that his waiver of the right toappeal is not valid. We agree. "[T]he minimal inquiry made by County Court wasinsufficient to establish that the court engage[d] the defendant in an adequate colloquy toensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v Box, 96 AD3d1570, 1571 [2012], lv denied 19 NY3d 1024 [2012] [internal quotationmarks omitted]; see People vJones, 107 AD3d 1589, 1589-1590 [2013], lv denied 21 NY3d 1075[2013]), and the court "conflated the waiver of the right to appeal with the rightsforfeited by defendant based on his guilty plea" (People v Tate, 83 AD3d 1467, 1467 [2011]; cf. People v Boatman, 110AD3d 1463, 1463 [2013], lv denied 22 NY3d 1039 [2013]). Nevertheless,we affirm.
Defendant failed to move to withdraw his plea or to vacate the judgment ofconviction, and thus he failed to preserve for our review his contention that the pleaallocution was factually insufficient (see People v Lopez, 71 NY2d 662, 665[1988]). In any event, that contention is without merit because "there is no requirementthat defendant recite the underlying facts of the crime to which he is pleading guilty" (People v Bailey, 49 AD3d1258, 1259 [2008], lv denied 10 NY3d 932 [2008]). Furthermore, the courtrecited the facts underlying the crime, and " '[t]he record establishes thatdefendant confirmed the accuracy of [the court's] recitation' " (People v Bullock, 78 AD3d1697, 1698 [2010], lv denied 16 NY3d 742 [2011]; see People v Gordon, 98 AD3d1230, 1230 [2012], lv denied 20 NY3d 932 [2012]).
Contrary to defendant's further contention, the court did not err in refusing tosuppress his statements to the police. "The People met 'their initial burden of establishingthe legality of the police conduct and defendant's waiver of rights,' and defendant failedto establish that he did not waive those rights, or that the waiver was not knowing,voluntary and intelligent" (People v [*2]Grady, 6 AD3d1149, 1150 [2004], lv denied 3 NY3d 641 [2004]; see People v Andrus, 77 AD3d1283, 1283 [2010], lv denied 16 NY3d 827 [2011]; see also People v Pratchett, 90AD3d 1678, 1679 [2011], lv denied 18 NY3d 997 [2012]).
Finally, defendant failed to preserve for our review his contention that the court erredin sentencing him as a persistent violent felony offender (see People v Proctor, 79NY2d 992, 994 [1992]). In any event, we reject that contention. The statute provides thatthe People must file a statement prior to sentencing indicating that defendant may havepreviously been convicted of a violent felony offense (see CPL 400.15 [2]). "Adefendant who wishes to controvert the allegations 'must specify the particular allegationor allegations he wishes to controvert' or they are deemed admitted . . .Where the 'uncontroverted allegations [in the predicate violent felony statement]. . . are sufficient to support a finding that the defendant has been subjectedto a predicate violent felony conviction the court must enter such finding' and sentencedefendant accordingly" (Peoplev Konstantinides, 14 NY3d 1, 14 [2009], quoting CPL 400.15 [3], [4]). Here,the record reflects that, prior to sentencing, defense counsel was provided with astatement alleging that defendant had previously been convicted of three felonies,including the violent felonies of assault in the second degree and robbery in the seconddegree. The record further reflects that, "defendant, in the presence of counsel, declinedto challenge any part of the People's persistent violent felony offender statement" (People v Buel, 53 AD3d930, 932 [2008]). Consequently, the allegations in the statement were properlydeemed admitted, and the court properly sentenced defendant as a persistent violentfelony offender. Present—Smith, J.P., Peradotto, Carni, Sconiers and Valentino,JJ.