| People v Mobayed |
| 2018 NY Slip Op 00773 [158 AD3d 1221] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v CraigMobayed, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
Christopher Bokelman, Acting District Attorney, Lyons (Timothy G. Chapman of counsel),for respondent.
Appeal from a judgment of the Wayne County Court (Daniel G. Barrett, J.), rendered March24, 2016. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty oftwo counts of robbery in the first degree (Penal Law § 160.15 [4]). We note at theoutset that defendant's purported waiver of the right to appeal is invalid. County Court failed toobtain a knowing and voluntary waiver of the right to appeal at the time of the plea (see People v Brown, 148 AD3d1562, 1562-1563 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]; People v Blackwell, 129 AD3d1690, 1690 [4th Dept 2015], lv denied 26 NY3d 926 [2015]). Moreover, even if ithad occurred at the time of the plea, the inquiry made by the court when defendant purportedlywaived his right to appeal after sentencing in the combined plea and sentencing proceeding was"insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensurethat the waiver of the right to appeal was a knowing and voluntary choice" (People v Sanford, 138 AD3d 1435,1435-1436 [4th Dept 2016] [internal quotation marks omitted]). Defendant also signed a writtenwaiver of the right to appeal at that time, but "[t]he court did not inquire of defendant whether heunderstood the written waiver or whether he had even read the waiver before signing it" (People v Bradshaw, 18 NY3d 257,262 [2011]; see Sanford, 138 AD3d at 1436).
Although a valid waiver of the right to appeal would not preclude defendant's challenge tothe voluntariness of his plea, defendant failed to preserve that challenge for our review inasmuchas he did not move to withdraw the plea or to vacate the judgment of conviction (seeSanford, 138 AD3d at 1436). In People v Lopez (71 NY2d 662 [1988]), however, theCourt of Appeals carved out a narrow exception to the preservation requirement for the "rarecase" in which "the defendant's recitation of the facts underlying the crime pleaded to clearlycasts significant doubt upon the defendant's guilt or otherwise calls into question thevoluntariness of the plea," thereby imposing upon the trial court "a duty to inquire further toensure that defendant's guilty plea is knowing and voluntary" (id. at 666). This case doesnot fall within that exception. Nothing defendant said during the plea colloquy itself raised thepossibility that the affirmative defense under Penal Law § 160.15 (4) was applicable(see People v Vogt, 150 AD3d1704, 1705 [4th Dept 2017]; Peoplev Masterson, 57 AD3d 1443, 1443 [4th Dept 2008]) and, contrary to defendant'scontention, we conclude that the court had no duty to conduct an inquiry concerning theaffirmative defense based upon comments made by defendant during the sentencing portion ofthe proceeding (see Vogt, 150 AD3d at 1705; People v Garbarini, 64 AD3d 1179, 1179 [4th Dept 2009], lvdenied 13 NY3d 744 [2009]; but seePeople v Gresham, 151 AD3d 1175, 1177-1178 [3d Dept 2017]).
[*2] Finally, inasmuch as the certificate of conviction anduniform sentence and commitment form incorrectly reflect that defendant was sentenced as asecond felony offender, they must be amended to reflect that he was sentenced as a secondviolent felony offender (see People vCarducci, 143 AD3d 1260, 1263 [4th Dept 2016], lv denied 28 NY3d 1143[2017]). Present—Whalen, P.J., Centra, Peradotto, Lindley and Winslow, JJ.