| People v Bond |
| 2017 NY Slip Op 00345 [146 AD3d 1155] |
| January 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth Bond, Appellant. |
Brian M. Callahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered August 7, 2014, convicting defendant upon his plea of guilty ofthe crime of robbery in the third degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and pleadedguilty to robbery in the third degree as charged in a superior court information. He alsoorally waived his right to appeal and signed a written waiver of appeal in open court.Defendant was then sentenced, as a second felony offender, to a prison term of 3 to 6years, and he now appeals.
Defendant contends that his factual recitation during the plea colloquy did notestablish the element of force required for robbery in the third degree (see PenalLaw § 160.05). Inasmuch as this argument constitutes a challenge to thefactual sufficiency of the plea, "it is precluded by [defendant's] valid appeal waiver,which he does not take issue with on appeal" (People v Blair, 140 AD3d 1478, 1479 [2016], lvdenied 28 NY3d 927 [2016]; see People v Jackson, 128 AD3d 1279, 1280 [2015], lvdenied 26 NY3d 930 [2015]; People v Devault, 124 AD3d 1140, 1140-1141 [2015],lv denied 25 NY3d 989 [2015]).
Defendant also contends that his plea was not knowing, voluntary and intelligentbecause County Court failed to advise him that he would be giving up his constitutionalprivilege against self-incrimination by pleading guilty (see People v Tyrell, 22 NY3d359, 365 [2013]; see also Boykin v Alabama, 395 US 238, 243 [1969]).Although this claim survives defendant's valid appeal waiver (see People v Giammichele, 144AD3d 1320, 1320 [2016]; People v Klinger, [*2]129 AD3d 1115, 1116 [2015]), it is unpreserved for ourreview as there is no indication in the record that he made an appropriate postallocutionmotion, despite having ample time to do so prior to sentencing (see People v Conceicao, 26NY3d 375, 382 [2015]; People v Toledo, 144 AD3d 1332, 1333 [2016]; Peoplev Giammichele, 144 AD3d at 1320; People v Sommers, 140 AD3d 1537, 1538 [2016], lvdenied 28 NY3d 974 [2016]). In any event, we decline to take corrective action inthe interest of justice inasmuch as the record confirms that County Court adequatelyadvised defendant of the constitutional rights he was forfeiting by pleading guilty.Furthermore, defendant expressed his understanding of those rights and heacknowledged his familiarity with them based upon his prior experience entering guiltypleas (see People v Sommers, 140 AD3d at 1538; People v Walker, 135 AD3d1244, 1245 [2016]; Peoplev Proper, 133 AD3d 918, 919 [2015]; compare People v Lowe, 133 AD3d 1099, 1101 [2015]).Thus, we are satisfied that there is "an affirmative showing on the record that thedefendant waived his constitutional rights" (People v Tyrell, 22 NY3d at 365[internal quotation marks and citation omitted]).
Peters, P.J., Garry, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.