| People v Lunan |
| 2016 NY Slip Op 05591 [141 AD3d 947] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert Lunan, Appellant. |
Barrett D. Mack, Albany, for appellant.
D. Holley Carnright, District Attorney (Joan Gudesblatt Lamb of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered February 25, 2014, convicting defendant upon his plea of guilty of the crimeof grand larceny in the fourth degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and pleadedguilty as charged in a superior court information to grand larceny in the fourth degree,and his plea included the waiver of the right to appeal. The plea embraced charges fromboth the Town of Ulster and the Town of Esopus, specifically requiring defendant toplead guilty to the larceny charge arising out of the Town of Esopus arrest and payrestitution of $1,500 to the victim in the Town of Ulster. County Court thereaftersentenced defendant as a second felony offender to the agreed-upon prison term of 2 to 4years. Defendant now appeals.
We affirm. Initially, we agree with defendant that his waiver of the right to appealwas not knowingly, intelligently and voluntarily made. The record reveals that he was notadequately informed that the right to appeal is "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, 264-266 [2011]). Moreover, although defendant executed a writtenwaiver in open court, the court failed to engage in any discussion with defendant or hisattorney as to whether defendant comprehended the waiver (see People vBradshaw, 18 NY3d at 264-265; People v Jeffery, 135 AD3d 1235, 1236 [2016]; People v Pope, 129 AD3d1389, 1390 [2015]; Peoplev Ashlaw, 126 AD3d 1236, 1237 [2015]; compare People v McCray, 139 AD3d 1235, [*2]1236 [2016]). That said, defendant's challenges to thevoluntariness of his plea are not preserved for our review, since he failed to make anappropriate postallocution motion (see People v Williams, 27 NY3d 212, 219 [2016]; People v Conceicao, 26 NY3d375, 382 [2015]). Further, defendant made no statements during his plea allocutionthat were inconsistent with his guilt or otherwise called into question the voluntariness ofhis plea so as to trigger the narrow exception to the preservation rule (see People vLopez, 71 NY2d 662, 664-665 [1988]; People v Blair, 136 AD3d 1105, 1106 [2016]; People v Kormos, 126 AD3d1039, 1040 [2015]), and reversal in the interest of justice is unwarranted.Accordingly, the judgment of conviction is affirmed.
Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.