| People v Proper |
| 2015 NY Slip Op 08006 [133 AD3d 918] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRichard C. Proper, Jr., Appellant. |
Robert D. Siglin, Elmira, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Garry, J.P. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered August 15, 2013, convicting defendant upon his plea of guilty of the crimeof attempted robbery in the first degree (two counts).
In satisfaction of a two-count indictment charging him with robbery in the firstdegree, defendant pleaded guilty to two counts of attempted robbery in the first degree andadmitted committing separate robberies of store clerks at knife-point on different days.Pursuant to a plea agreement that included a waiver of appeal, defendant was sentencedas a second felony offender to an aggregate prison term of 10 years, followed by fiveyears of postrelease supervision. Defendant appeals, and we affirm.
Initially, as the People concede, defendant's waiver of appeal is invalid. The recordfails to reflect defendant's understanding of the waiver or "that it was made knowingly,intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18NY3d 257, 264-265 [2011]; People v Callahan, 80 NY2d 273, 283 [1992];People v Bouton, 107 AD3d1035, 1036 [2013], lv denied 21 NY3d 1072 [2013]).
As to the merits, defendant argues that his guilty plea was not knowing, voluntaryand intelligent because County Court failed to advise him of the rights he was waiving bypleading guilty, including "the privilege against self-incrimination and the rights to a jurytrial and to be confronted by witnesses" (People v Tyrell, 22 NY3d 359, 365 [2013], citingBoykin v Alabama, [*2]395 US 238, 243 [1969];accord People v Vences,125 AD3d 1050, 1051 [2015]). While this claim was not preserved through apostallocution motion to withdraw the plea, to the extent that it challenges a mode ofproceedings error, preservation was not required (see People v Tyrell, 22 NY3dat 364; People v Mones,130 AD3d 1244, 1245 [2015]). In any event, we find this contention to be withoutmerit. While "there must be an affirmative showing on the record that the defendantwaived his constitutional rights," the court was not required "to specifically enumerate allthe rights to which the defendant was entitled [or] to elicit . . . detailedwaivers before accepting the guilty plea" (People v Tyrell, 22 NY3d at 365[internal quotation marks and citations omitted]; see People v Klinger, 129 AD3d 1115, 1116-1117 [2015]).Here, contrary to defendant's contentions, review of the record reveals that County Courtadequately advised him of the terms of the plea agreement, the constitutional andtrial-related rights he was forfeiting by pleading guilty, and the consequences of his plea,and defendant indicated that he understood and admitted the charged conduct (cf.People v Klinger, 129 AD3d at 1117; People v Vences, 125 AD3d at 1051).Accordingly, we find that defendant's plea was knowing, voluntary and intelligent (see People v Haffiz, 19 NY3d883, 884-885 [2012]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Stevenson, 119 AD3d1156, 1156-1157 [2014]). Defendant's remaining claims have been examined andlack merit.
Rose, Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.