| People v Garcia-Cruz |
| 2016 NY Slip Op 03302 [138 AD3d 1414] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Jose Garcia-Cruz, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered May 23, 2012. The judgment convicted defendant, upon his plea of guilty, ofburglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of burglary in the first degree (Penal Law § 140.30 [3]). We agreewith defendant that the waiver of the right to appeal is invalid because "the minimalinquiry made by County Court was insufficient to establish that the court engage[d] thedefendant in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice" (People v Jones, 107 AD3d 1589, 1589 [2013], lvdenied 21 NY3d 1075 [2013] [internal quotation marks omitted]; see People v Amir W., 107AD3d 1639, 1640 [2013]), and because "there is no basis upon which to concludethat the court ensured 'that the defendant understood that the right to appeal is separateand distinct from those rights automatically forfeited upon a plea of guilty' "(Jones, 107 AD3d at 1590, quoting People v Lopez, 6 NY3d 248, 256 [2006]). Wenevertheless reject defendant's challenge to the severity of the sentence.
Defendant contends that he was denied his due process right to an interpreter at someproceedings, requiring reversal of the conviction. Upon our review of the record, weconclude that defendant, who was represented by counsel, failed to preserve hiscontention for our review because he never objected to the absence of an interpreter(see People v Robles, 86 NY2d 763, 764-765 [1995]; People v Rivera, 15 AD3d859, 860 [2005], lv denied 4 NY3d 856 [2005]). In any event, we concludethat there was only one preliminary court appearance during which an interpreter may nothave been present, and defendant's presence at that appearance was not required (seegenerally People v Dokes, 79 NY2d 656, 660 [1992]). Thus, any translation for hisbenefit would have been unnecessary.
By failing to move to withdraw the plea or to vacate the judgment of conviction,defendant failed to preserve for our review his contention that the plea was notvoluntarily entered (see Peoplev Connolly, 70 AD3d 1510, 1511 [2010], lv denied 14 NY3d 886[2010]). This case does not fall within the rare exception to the preservation requirementset forth in People v Lopez (71 NY2d 662, 666 [1988]) "because nothing in theplea allocution calls into question the voluntariness of the plea or casts 'significant doubt'upon his guilt" (People vPitcher, 126 AD3d 1471, 1472 [2015], lv denied 25 NY3d 1169 [2015],quoting Lopez, 71 NY2d at 666). The statements made by defendant during hispresentence interview and at sentencing regarding his possible intoxication during theoffense did not require the court to conduct an inquiry regarding the voluntariness of theplea (see People v Arney,120 AD3d 949, 950 [2014]; Connolly, 70 AD3d at 1511; People v Kelly, 50 AD3d921, 921 [2008], lv denied 10 NY3d 960 [2008]). Further, althoughdefendant's contention that the plea should be vacated because the court misstated theminimum period of postrelease supervision during the plea colloquy does not requirepreservation (see People vBrooks, 128 AD3d 1467, 1468 [2015]), we [*2]conclude that the misstatement did not render the pleainvoluntary (see People v Garcia, 92 NY2d 869, 870-871 [1998]; cf.Brooks, 128 AD3d at 1468). Present—Whalen, P.J., Peradotto, Lindley,NeMoyer and Scudder, JJ.