| People v Spellicy |
| 2014 NY Slip Op 08673 [123 AD3d 1228] |
| December 11, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vFrancis D. Spellicy, Appellant. |
Joseph Nalli, Fort Plain, for appellant, and appellant pro se.
Louise K. Sira, District Attorney, Johnstown (James P. Riley of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Fulton County (Giardano,J.), rendered July 27, 2011, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the second degree.
In December 2010, in satisfaction of a five-count indictment, defendant pleadedguilty to burglary in the second degree and waived his right to appeal. He latersuccessfully moved to vacate the plea and new counsel was appointed. In July 2011, insatisfaction of all charges against him, defendant pleaded guilty to attempted burglary inthe second degree and waived his right to appeal. The charges stemmed from a May 2010incident where he, among other things, entered a residence without the permission of theowner with the intent to commit a crime. He was sentenced, as agreed, to a two-yearprison term with 1
We affirm. Initially, we are unpersuaded by defendant's challenge to the validity ofhis appeal waiver. "A waiver of the right to appeal is effective only so long as the recorddemonstrates that it was made knowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d248, 256 [2006] [citation omitted]). "An appellate waiver meets this standard when adefendant has 'a full appreciation of the consequences' of such waiver" (People v Bradshaw, 18 NY3d257, 264 [2011], quoting People v Seaberg, 74 NY2d 1, 11 [1989]). "To thatend, a defendant must comprehend that an appeal waiver 'is separate and distinct fromthose rights automatically [*2]forfeited upon a plea ofguilty' " (People v Bradshaw, 18 NY3d at 264, quoting People vLopez, 6 NY3d at 256). Here, the record confirms that County Court adviseddefendant with regard to the nature of the rights he was waiving as part of the appealwaiver and that the appeal waiver was separate from those rights he forfeited by hisguilty plea. In fact, the court asked him to explain the appeal waiver, and defendantconfirmed that it meant that he would not "be able to come back and make any issuesabout defenses or problems or [that he did not] understand or anything like that."Defendant asked to, and did, execute a written appeal waiver in open court that includedthis information and reinforced that he was aware of the consequences of the waiverbefore confirming that he had an opportunity to review the appeal waiver with hisattorney. In our view, his argument that he felt forced to waive his right to appeal is,therefore, belied by the record (see People v Miner, 120 AD3d 1449, 1450 [2014]; People v Long, 117 AD3d1326, 1326 [2014], lv denied 24 NY3d 1003 [2014]).
Defendant also argues that his guilty plea should be vacated because it was notknowing or voluntary. While the voluntariness of a plea may be challenged where thereis an appeal waiver (see Peoplev Barnes, 119 AD3d 1290, 1290-1291 [2014]), here, the claim is not preservedfor appellate review because defendant did not make an appropriate postallocutionmotion (see id. at 1291; People v Smith, 119 AD3d 1088, 1089 [2014]). Contrary todefendant's argument, we do not believe the record casts doubt on the voluntariness ofhis plea so as to warrant application of the "rare" exception to the preservationrequirement (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Ferro, 101 AD3d1243, 1244 [2012], lv denied 20 NY3d 1098 [2013]). Rather, the recordconfirms that defendant directed his attorney to seek the plea, County Court explainedand confirmed that defendant understood the terms and consequences of the plea, anddefendant admitted that he engaged in the charged conduct (see People v Barnes,119 AD3d at 1291; People vWasley, 119 AD3d 1216, 1217 [2014]). Although the court had rejecteddefendant's attempt to plea in June 2011, we do not believe that his prior refusal to admitguilt invalidates the instant plea to a reduced charge (see People v Wasley, 119AD3d at 1217). In our view, the record confirms that defendant was especially consciousof the consequences of his plea as compared to going to trial, and we note that hesuccessfully obtained the violent felony override (see 7 NYCRR 1900.4 [c]), arequest that County Court had previously denied.
Finally, defendant's challenge to County Court's denial of his suppression motionruling is precluded by the valid appeal waiver (see People v Kemp, 94 NY2d 831,833 [1999]; People v Colon,101 AD3d 1161, 1161 [2012], lv denied 21 NY3d 1003 [2013]; People v Junior, 97 AD3d984, 984-985 [2012], lv denied 19 NY3d 1103 [2012]), and we declinedefendant's request to take corrective action in the interest of justice.
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.