| People v Bennett |
| 2014 NY Slip Op 08040 [122 AD3d 871] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Clay S. Bennett, Also Known as Clau Bennett,Appellant. |
Maureen Galvin Dwyer, Northport, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Condon, J.), rendered January 25, 2012, convicting him of attempted burglary in thesecond degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The County Court's oral colloquy with the defendant regarding the waiver of theright to appeal established that the defendant knowingly, voluntarily, and intelligentlywaived his right to appeal (see People v Brown, 122 AD3d 133 [2d Dept 2014]).The defendant's valid appeal waiver forecloses review of his claim regarding theadequacy of the procedures used to adjudicate him a predicate felony offender (see People v Haynes, 70 AD3d718, 718-719 [2010]; People v Lassiter, 48 AD3d 700, 700 [2008]; People v Backus, 43 AD3d409, 410 [2007]).
The defendant's claim that his plea was not knowing, voluntary, and intelligentsurvives his valid appeal waiver (see People v Lujan, 114 AD3d 963, 964 [2014]), but thedefendant failed to preserve this claim (see People v Sabo, 117 AD3d 1089 [2014]; People v Ortiz, 116 AD3d1070, 1070 [2014]; Peoplev King, 115 AD3d 986, 986 [2014]). Contrary to the defendant's contention, theexception to the preservation requirement does not apply here, because the defendant'splea allocution did not cast significant doubt upon his guilt, negate an essential elementof the crime, or call into question the voluntariness of the plea (see People v Tyrell, 22 NY3d359, 364 [2013]; People v Lopez, 71 NY2d 662, 666 [1988]; People vLujan, 114 AD3d at 964; People v Nilsen, 114 AD3d 706, 706 [2014]). In any event,the claim is meritless. There is no uniform mandatory catechism for accepting a plea ofguilty (see People v Seeber,4 NY3d 780, 781 [2005]), and a plea of guilty therefore will not be invalidatedsolely because the court failed to specifically enumerate all the rights to which thedefendant was entitled (see People v Tyrell, 22 NY3d at 365; People vHarris, 61 NY2d 9, 16 [1983]). Here, before the court accepted the defendant's pleaof guilty, it adequately advised the defendant of the rights he was surrendering bypleading guilty (see People vJackson, 114 AD3d 807, 807-808 [2014]).
The defendant further contends that his period of postrelease supervision is excessiveor illegal. To the extent that the defendant seeks reduction of his period of postreleasesupervision on the ground that it is excessive (see CPL 470.15 [6] [b]), his claimis foreclosed by his valid waiver [*2]of his right to appeal(see People v Blas, 120AD3d 585 [2014]; cf.People v Smith, 120 AD3d 1270 [2014]). To the extent that the defendant baseshis contention on the denial of his motion to set aside the sentence under CPL 440.20, itis not properly before us inasmuch as the defendant never obtained leave to appeal fromthe denial of that motion. Finally, to the extent that the defendant contends that the periodof postrelease supervision is illegal because he had not been convicted of a predicatefelony, his claim is without merit. The record establishes that the defendant had in factbeen convicted of a predicate felony offense, so he was properly sentenced under PenalLaw § 70.06 (6), rather than under Penal Law § 70.02 (3) (c).Accordingly, the period of postrelease supervision was required to be five years (seePenal Law § 70.45 [2]).
Lastly, the defendant has not demonstrated that he was deprived of his right to theeffective assistance of counsel (see People v Baldi, 54 NY2d 137, 147 [1981]).Balkin, J.P., Leventhal, Hinds-Radix and LaSalle, JJ., concur.