| People v Widger |
| 2018 NY Slip Op 02838 [160 AD3d 1297] |
| April 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edward A. Widger, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered September 4, 2014, convicting defendant upon his plea of guilty of the crime ofburglary in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with burglary in the third degree. The People initially proposed thatdefendant plead guilty to the charged crime and waive his right to appeal in exchange for a prisonterm of 2 to 4 years. When defendant appeared for the plea colloquy, however, it was discoveredthat the proposed prison term was not a legal sentence for a first felony offender, and the Peopleamended their offer to encompass a prison term of 2 to 6 years. After County Court appriseddefendant of his maximum potential sentencing exposure, defense counsel requested and wasgranted an opportunity to confer with defendant's mother, who was present in the courtroom.Following that conversation, defendant expressed his desire to go forward, waived his right toappeal and, after assuring the court that he had been afforded sufficient time to confer with hismother and defense counsel, pleaded guilty to burglary in the third degree under the theory ofacting in concert with his codefendants. County Court thereafter sentenced defendant to theagreed-upon prison term of 2 to 6 years. Defendant now appeals.
We affirm. Although defendant's challenge to the voluntariness of his plea survives hisuncontested waiver of the right to appeal, it is unpreserved for our review absent evidence of anappropriate postallocution motion (seePeople v Jones, 146 AD3d 1078, 1080 [2017], lv denied [*2]29 NY3d 999 [2017]; People v Walker, 135 AD3d 1244, 1244-1245 [2016]). Defendant'srelated claim—that the plea was factually deficient—"is precluded by the. . . appeal waiver and, further, is similarly unpreserved" (People v Smith, 155 AD3d 1244,1245 [2017]; see People vRobinson, 155 AD3d 1252, 1253 [2017], lv denied 30 NY3d 1119 [2018]).Contrary to defendant's assertion, "the exception to the preservation rule is inapplicable inasmuchas defendant's recitation of the facts underlying the crime to which he pleaded guilty does notcast significant doubt on his guilt based on a theory of accessorial liability or call into questionthe voluntariness of his plea" (People vFrank, 100 AD3d 1145, 1146 [2012] [citation omitted]). Notably, "there is no legaldistinction between liability as a principal and criminal culpability as an accessory," anddefendant, by his own admission, readily acknowledged that he intended to participate in theburglary with his codefendants and that his role was to act as a lookout (People v King,114 AD2d 424, 424 [1985]). Finally, the record plainly reflects that defendant wasapprised—prior to pleading guilty—that the term of imprisonment initiallycontemplated (2 to 4 years) could not be honored because it constituted an illegal sentence;defendant was made aware of the corrected term of imprisonment that he would be facing (2 to 6years), and counsel's request for an opportunity to discuss this development with defendant'smother was granted. Under these circumstances, we are satisfied that defendant "received the fullbenefit of his bargain" (People vKlein, 26 AD3d 530, 531 [2006], lv denied 6 NY3d 849 [2006]). Defendant'sremaining arguments have been examined and found to be lacking in merit.
McCarthy, J.P., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.