| People v Banks |
| 2014 NY Slip Op 07524 [122 AD3d 953] |
| November 6, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRaquan Banks, Appellant. |
Bruce Evans Knoll, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter Willis of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Teresi, J.), entered July 25,2012 in Schenectady County, convicting defendant upon his plea of guilty of the crimeof manslaughter in the first degree.
Defendant was charged in an indictment with numerous counts, including two countsof murder in the second degree, after firing a handgun into a crowd of people and killinga man in May 2008. After his incarceration on those charges, he was charged in a secondindictment with two counts of robbery in the second degree and two counts of assault inthe second degree in connection with a 2011 incident at the Schenectady CountyCorrectional Facility. Following the denial of his motion to suppress both identificationevidence and various statements that he made to police, defendant pleaded guilty tomanslaughter in the first degree in satisfaction of the first indictment and robbery in thesecond degree in satisfaction of the second indictment, and waived his right to appeal.Supreme Court informed defendant that it intended to sentence him to a determinateprison term between 20 to 24 years on the manslaughter charge, and five years in prisonon the robbery charge, to run concurrently and to be followed by five years of postreleasesupervision.
Thereafter, defendant moved to vacate his plea to robbery in the second degree onthe ground that, among other things, his allocution was insufficient. The People did notoppose the [*2]motion, conceded that the allocution didnot sufficiently address the elements of robbery, and indicated that they were willing toaccept defendant's plea to manslaughter in the first degree in full satisfaction of bothindictments. County Court then granted defendant's motion, dismissed the secondindictment setting forth the robbery charges, sentenced him to 24 years in prison to befollowed by five years of postrelease supervision, and imposed restitution. Defendantappeals, and we affirm.
Initially, we reject defendant's argument that his plea of guilty to manslaughter in thefirst degree was not knowingly, voluntarily and intelligently made. As defendantconcedes, this issue is unpreserved for our review, because he did not challenge his pleato the charge of manslaughter by appropriate postallocution motion (see People v Barnes, 119AD3d 1290, 1290-1291 [2014]; People v McGregor, 119 AD3d 1235, 1236 [2014]).Contrary to his further contentions, the narrow exception to the preservation requirementis inapplicable here, because defendant's statements during the plea colloquy did not callinto question either his guilt or the voluntariness of the plea (see People v Lopez,71 NY2d 662, 666 [1988]; People v Barnes, 119 AD3d at 1291). Although at onepoint defendant made statements indicating that he might not understand the nature ofthe charge against him, Supreme Court made adequate further inquiry to establish thatdefendant was knowingly admitting to the elements of manslaughter in the firstdegree—i.e., that "[w]ith intent to cause serious physical injury to another person,he cause[d] the death of . . . a third person" (Penal Law§ 125.20 [1]; seePeople v Ramos, 19 NY3d 133, 136-137 [2012])—because he was, infact, guilty (see People v Lopez, 71 NY2d at 667-668). Moreover, we areunpersuaded that his plea to the manslaughter charge was rendered involuntary when thePeople consented to his request to withdraw his plea to the charge of robbery in thesecond degree and indicated their willingness to accept his plea to manslaughter insatisfaction of both indictments. The second indictment charging robbery was notdismissed until the time of sentencing, and there is no merit to defendant's contention thathe was somehow misled regarding the maximum sentence that he could have faced upongoing to trial, as opposed to pleading guilty to manslaughter in the first degree.
Finally, defendant's valid waiver of the right to appeal precludes his assertion that hissentence was harsh and excessive (see People v Vandemark, 117 AD3d 1339, 1340 [2014],lv denied 24 NY3d 965 [2014]; see also People v Lyman, 119 AD3d 968, 970 [2014]).
Peters, P.J., Stein, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.