| People v Rogers |
| 2018 NY Slip Op 02073 [159 AD3d 1558] |
| March 23, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v James E.Rogers, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Spencer J. Ludington, A.J.), renderedNovember 6, 2014. The judgment convicted defendant, upon his plea of guilty, of attemptedassault in the first degree.
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 ofattempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]). Weagree with defendant that his waiver of the right to appeal is not valid inasmuch as County Courtconflated the right to appeal with those rights automatically forfeited by the guilty plea (see People v Hawkins, 94 AD3d1439, 1439-1440 [4th Dept 2012], lv denied 19 NY3d 974 [2012]). Thus, the recordfails to establish that "defendant understood that the right to appeal is separate and distinct fromthose rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d257, 264 [2011]).
With respect to the merits of the appeal, even assuming, arguendo, that defendant'scontention that some of the proceedings were electronically recorded and later transcribed inviolation of Judiciary Law § 295 survives his guilty plea (see generally People vHarrison, 85 NY2d 794, 796-797 [1995]), we conclude that the contention is unpreserved forour review inasmuch as defendant did not object to the court's use of the electronic recordingdevice and the absence of a stenographer (see People v Clark, 142 AD3d 1339, 1340 [4th Dept 2016], lvdenied 28 NY3d 1143 [2017]). In any event, defendant did not satisfactorily demonstrate thathe was prejudiced in taking his appeal such that reversal is warranted (see People v Wanass, 55 Misc 3d97, 100 [App Term, 1st Dept 2017]). We further conclude that defendant's sentence is notunduly harsh or severe.
Defendant has failed to preserve his remaining contentions for our review, and we decline toexercise our power to review them as a matter of discretion in the interest of justice (seeCPL 470.15 [3] [c]). Present—Centra, J.P., Carni, NeMoyer, Curran and Winslow, JJ.