People v Kruppenbacher

2018 NY Slip Op 05365 [163 AD3d 1266]

July 19, 2018

Appellate Division, Third Department

As corrected through Wednesday, August 29, 2018

[*1](July 19, 2018)

The People of the State of New York,Respondent, v Ross Kruppenbacher Jr., Appellant.

Michael C. Ross, Bloomingburg, for appellant.

Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.

Aarons, J. Appeal from a judgment of the County Court of Greene County (Tailleur, J.),rendered July 23, 2013, convicting defendant upon his plea of guilty of the crime of course ofsexual conduct against a child in the first degree.

In satisfaction of a 17-count indictment, defendant pleaded guilty to course of sexual conductagainst a child in the first degree and orally waived his right to appeal. The plea agreementprovided that defendant's prison sentence would be capped at 171/2 years and thathe was free to argue at sentencing for a prison sentence as low as five years. Consistent with theagreement, County Court ultimately sentenced defendant to a prison term of 171/2years, to be followed by 10 years of postrelease supervision. Defendant appealed and his counselfiled an Anders brief and moved to be relieved as counsel. This Court rejected theAnders brief, withheld decision and assigned new counsel to represent defendant onappeal (154 AD3d 1059 [2017]). We now affirm.

Initially, we agree with defendant that his oral appeal waiver, which was unaccompanied by awritten waiver, is invalid inasmuch as County Court failed to advise him that "the right to appealis separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Treceno, 160AD3d 1216, 1216 [2018]; People vDarrell, 145 AD3d 1316, 1317 [2016], lv denied 29 NY3d 1125 [2017]).Defendant's challenge to his guilty plea as not knowing, voluntary and intelligent is unpreservedfor our review, as the record does not disclose that he made an appropriate postallocution motion(see People v Suits, 158 AD3d949, 950 [2018]; People vCarter, 158 AD3d 946, 946 [2018]). Moreover, the narrow exception to the preservationrequirement is inapplicable as defendant did not make any statements during the plea colloquy orsentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of hisplea (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Jackson, 159 AD3d 1276, 1276 [2018]). In any event,contrary to defendant's contention, the record reflects that he was aware of the nature and termsof the plea agreement, including the sentencing commitment and the rights that he was forfeitingby pleading guilty, and that he had an opportunity to discuss the consequences of the plea withhis counsel (see People v Evans,159 AD3d 1226, 1227 [2018], lv denied 31 NY3d 1081 [ 2018]; People v White, 153 AD3d 1044,1045 [2017], lv denied 30 NY3d 1023 [2017]). Furthermore, the fact that the prosecutorparticipated in the plea allocution does not render defendant's guilty plea invalid (see People v Singh, 158 AD3d824, 825 [2018], lv denied 31 NY3d 1087 [2018]; People v Empey, 141AD2d 987, 988 [1988]).

Finally, while the invalid appeal waiver does not preclude defendant's challenge to thesentence as harsh and excessive, we find his challenge to be without merit. Despite defendant'sminimal criminal history, after reviewing the record and taking into consideration the deplorablenature of defendant's crime against the young victim, we find no extraordinary circumstances orabuse of discretion warranting a reduction of the sentence in the interest of justice (see People v Kennard, 60 AD3d1096, 1097 [2009], lv denied 12 NY3d 926 [2009]).

Garry, P.J., Egan Jr., Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.