| People v Gibson |
| 2016 NY Slip Op 04864 [140 AD3d 1786] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCordero R. Gibson, Appellant. |
Dominic Saraceno, Buffalo, for defendant-appellant.
Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of counsel),for respondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedOctober 31, 2012. The judgment convicted defendant, upon his plea of guilty, ofmanslaughter 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 manslaughter in the first degree (Penal Law § 125.20 [1]). Theconviction arises from an attempted robbery committed by defendant and a codefendant,during which the codefendant shot and killed a man. Defendant was charged with, interalia, felony murder (§ 125.25 [3]), and he pleaded guilty to manslaughter inthe first degree as a lesser included offense under the felony murder count. The factualallocution at the plea proceeding, however, established the elements of felony murderrather than those of manslaughter.
Initially, we conclude that defendant made a knowing, voluntary, and intelligentwaiver of his right to appeal (seePeople v Adams, 94 AD3d 1428, 1428-1429 [2012], lv denied 19 NY3d970 [2012]; see generallyPeople v Sanders, 25 NY3d 337, 340-342 [2015]), and that the waiverencompasses his challenge to the severity of his sentence (see People v Hidalgo,91 NY2d 733, 737 [1998]; People v Bailey, 137 AD3d 1620, 1621 [2016]; cf. People v Maracle, 19 NY3d925, 927-928 [2012]).
Defendant further contends that his plea of guilty was not knowingly, voluntarily,and intelligently entered. To the extent that defendant's contention survives his waiver ofthe right to appeal (see People vBishop, 115 AD3d 1243, 1244 [2014], lv denied 23 NY3d 1018 [2014],reconsideration denied 24 NY3d 1082 [2014]), we conclude that it is notpreserved for our review inasmuch as his motion to withdraw his plea was made ongrounds different from those advanced on appeal (see People v Green, 132 AD3d 1268, 1268-1269 [2015];cf. People v Johnson, 23NY3d 973, 975 [2014]).
We further conclude that this case does not fall within the "narrow exception" to thepreservation rule (People v Lopez, 71 NY2d 662, 666 [1988]). Although the pleaallocution did not establish every element of manslaughter in the first degree, it neithernegated an essential element of that crime nor otherwise cast doubt on the voluntarinessof the plea (see People vBrown, 115 AD3d 1204, 1205-1206 [2014], lv denied 23 NY3d 1060[2014]; People v Royal, 306 AD2d 886, 887 [2003], lv denied 100 NY2d624 [2003]), and no factual basis for a guilty plea is necessary where, as here, thedefendant enters a negotiated plea to a lesser offense than that charged in the indictment(see Johnson, 23 NY3d at 975; People v Norman, 128 AD3d 1418, 1419 [2015], lvdenied 27 NY3d 1003 [2016]). We note that a guilty plea to manslaughter in the firstdegree is permissible in satisfaction of a felony murder charge involving the same victimeven though the former crime is not technically a lesser included offense of the latter(see People v Adams, 57 NY2d 1035, 1037-1038 [1982]; People vLebron, 238 AD2d 150, 150 [1997], lv denied 90 NY2d 895 [1997], certdenied 522 US 1032 [1997]; see generally CPL 220.20; People vJohnson, 89 NY2d 905, 907-908 [1996]), and we reject defendant's contention thatthe discrepancy between his plea to manslaughter and his allocution to felony murder,standing [*2]alone, is sufficient to undermine the validityof the plea (see People v Foster, 19 NY2d 150, 152-154 [1967]; People vTorres, 125 AD2d 252, 253 [1986], lv denied 69 NY2d 834 [1987]; cf.Johnson, 23 NY3d at 975-976; People v Worden, 22 NY3d 982, 985-986 [2013]).Contrary to defendant's further contention, we conclude that the court was not obligatedto conduct any inquiry of him concerning the statutory affirmative defense to felonymurder (see generally Penal Law § 125.25 [3]) because nothing inthe plea colloquy raised the possibility that the affirmative defense was applicable in thiscase (see People v Heyward, 111 AD2d 420, 420-421 [1985]; see generally People v Hill,128 AD3d 1479, 1480 [2015], lv denied 26 NY3d 930 [2015]; People v Masterson, 57 AD3d1443, 1443 [2008]). Present—Whalen, P.J., Carni, NeMoyer, Troutman andScudder, JJ.