| People v Zabawczuk |
| 2015 NY Slip Op 04519 [128 AD3d 1267] |
| May 28, 2015 |
| Appellate Division, Third Department |
[*1](May 28, 2015)
| The People of the State of New York, Respondent, vScott W. Zabawczuk, Appellant. |
M. Elizabeth Coreno, Saratoga Springs, for appellant.
James E. Conboy, District Attorney, Fonda (William J. Mycek of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered August 22, 2011, convicting defendant upon his guilty plea of thecrime of burglary in the second degree.
In satisfaction of a four-count indictment, defendant entered a guilty plea to burglaryin the second degree stemming from his involvement in a home invasion with three otherpeople during which cash and other valuables were stolen from the homeowner's safeand the homeowner was assaulted. In accordance with the plea agreement, which alsoincluded an appeal waiver, defendant was sentenced as a second felony offender to aprison term of 10 years with five years of postrelease supervision and restitution.Defendant now appeals.
Defendant claims that his guilty plea was not knowing, voluntary and intelligentbecause the People tied the plea offer to their support of his right to be released on bail.However, defendant did not raise this contention before County Court or move towithdraw his guilty plea and, therefore, it is not preserved for our review (see People v Peque, 22 NY3d168, 182-183 [2013], cert denied 574 US &mdash, 135 S Ct 90 [2014];People v Lopez, 71 NY2d 662, 665 [1988]). In any event, defendant's claimconcerns an appearance almost two months before his entry of a guilty plea. While weagree that the People improperly interjected the issue of bail into the plea [*2]negotiations at that appearance, the court releaseddefendant on bail at that time.[FN*] After defendant entered a guilty plea,he was continued on bail pending sentencing. Thus, the record belies his claim that hewas forced to enter a guilty plea in order to achieve bail (see People v Todd, 276AD2d 913, 914 [2000]). That is, neither the court nor the People required that he choosebetween admitting guilt and remaining free or maintaining his innocence and remainingin jail (see People v Baker,104 AD3d 783, 783 [2013], lv denied 21 NY3d 1013 [2013], certdenied 571 US &mdash, 134 S Ct 700 [2013]; cf. People v Grant, 61 AD3d 177, 183-184 [2009]).Further, our review of the plea allocution reveals that the guilty plea represented "aninformed choice freely made by defendant among other valid alternatives" (People v Brown, 14 NY3d113, 116 [2010]) and that it was entered knowingly, voluntarily and intelligently (see People v Tyrell, 22 NY3d359, 365 [2013]).
Although the plea agreement included a waiver of the right to appeal signed in opencourt, the record reflects that it was not knowing, voluntary and intelligent becauseCounty Court did not explain or ascertain that defendant understood the nature of theright being waived, including that the right was "separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18NY3d 257, 264 [2011]; People v Ritter, 124 AD3d 1133, 1134 [2015]; People v Blackmon, 122 AD3d1071, 1071 [2014], lv denied 24 NY3d 1218 [2015]). As the appeal waiveris invalid, he is not precluded from challenging the sentence as harsh and excessive. Inview of the nature of the crime perpetrated against an elderly victim in his home anddefendant's extensive criminal history, we are not persuaded by his claims that thesentence imposed, which was in the middle range (see Penal Law§ 70.06 [6] [b]) and in accord with the agreement, was an abuse ofdiscretion. Although the prosecutor's remarks at sentencing regarding defendant's"stupidity" exceeded the scope of "matter[s] relevant to the question of sentence" (CPL380.50 [1]), defendant did not timely object, thus failing to preserve this issue forappellate review. Moreover, since the sentence was in accord with the plea agreement,we see no reason to take corrective action in the interest of justice (see CPL470.15 [3] [c]; compare Peoplev Garcia, 69 AD3d 1229, 1230 [2010]).
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Upon his release,defendant was immediately sent to jail in another county on an unrelated pending matter.