| People v Walker |
| 2016 NY Slip Op 00545 [135 AD3d 1244] |
| January 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAndre Walker, Appellant. |
Frank A. Sarat, Homer, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long ofcounsel), for respondent.
Lynch, J. Appeal from a judgment of the County Court of Cortland County (Ames,J.), rendered October 1, 2013, convicting defendant upon his plea of guilty of the crimesof conspiracy in the fourth degree and criminal possession of a controlled substance inthe third degree.
Following an investigation by the Attorney General's Statewide Organized CrimeTask Force, defendant and George Macon were charged in a superceding indictment withconspiracy in the fourth degree and other drug-related felonies stemming from thedistribution of cocaine in 2012. Following extensive negotiations, defendant accepted aplea agreement pursuant to which he waived his right to appeal and pleaded guilty toconspiracy in the fourth degree and criminal possession of a controlled substance in thethird degree under counts 1 and 3 of the indictment, respectively, in satisfaction of allcharges. He was sentenced, consistent with the plea agreement, to time served on each ofthe convictions, approximately one year in jail, to be served concurrently. Defendantappeals.
We affirm. Defendant challenges the voluntariness of his guilty plea, a claim thatsurvives his uncontested waiver of the right to appeal but which is not preserved for thisCourt's review given his failure to make an appropriate postallocution motion(see CPL 220.60 [3]; People v Hudson, 130 AD3d 1320, 1320 [2015]; People v Guyette, 121 AD3d1430, 1431 [2014]). Moreover, the narrow exception to the preservation rule isinapplicable here, as defendant did not make any statements during his ultimate pleaallocution that were inconsistent [*2]with his guilt orotherwise called into question the voluntariness of his plea (see People v Lopez,71 NY2d 662, 666 [1988]; People v Hare, 110 AD3d 1117, 1117 [2013]). AlthoughCounty Court's initial attempts to complete a plea allocution were halted due todefendant's reluctance to implicate Macon or to admit certain overt acts alleged infurtherance of the conspiracy, after two adjournments, defense counsel assured the courtthat defendant "understands his rights." Defendant thereafter allocuted, withoutqualification, to the conspiracy charge, including sufficient overt acts, and also admittedto the possession charge and, during both allocutions, made no statements suggestive ofinnocence or involuntariness. Further, prior to eliciting and accepting his guilty plea, thecourt adequately informed defendant of the trial-related rights that he was forfeiting as aconsequence of the guilty plea, including "the privilege against self-incrimination and therights to a jury trial and to be confronted by witnesses" (People v Tyrell, 22 NY3d359, 365 [2013], citing Boykin v Alabama, 395 US 238, 243 [1969]). Assuch, there is an "affirmative showing on the record that the defendant waived hisconstitutional rights" (People v Tyrell, 22 NY3d at 365 [internal quotation marksand citation omitted]).
With regard to defendant's specific claim that his plea was involuntary in that hisfactual admissions (although not his actual guilty plea) preceded County Court'sadvisement of the rights he would be forfeiting in connection with his guilty plea, wereiterate that it is the better practice to advise a pleading defendant of such rights "priorto obtaining an admission to the charges and a plea of guilty" (People v Mandiville, 84 AD3d1644, 1645 n [2011]). We note that the Court of Appeals has held that, with regardto a trial court's failure to properly inform a defendant of the trial-related rights forfeitedby a guilty plea, preservation is required "depending upon the particular circumstances ofa case" (People vConceicao, 26 NY3d 375, 382 [2015]). Here, defendant failed to preserve thisissue by making a postallocution motion to withdraw his plea, despite the opportunity todo so in the months following his guilty plea and before sentencing (see id.).Given that defendant was advised of his trial-related rights during two arraignments andonly entered a guilty plea after he was fully advised of the rights that he was forgoing byhis plea, we decline to take corrective action in the interest of justice (see CPL470.15 [6]). Defendant's remaining claims have been reviewed and determined to lackmerit.
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.