| People v Ramos |
| 2018 NY Slip Op 05945 [164 AD3d 922] |
| August 29, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Percy Ramos, Appellant. |
Mark Diamond, New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco andWilliam C. Milaccio of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (BarbaraGunther Zambelli, J.), rendered September 20, 2016, convicting him of criminal possession of aweapon in the second degree, upon his plea of guilty, and imposing sentence. Upon the appealfrom the judgment, the duration of the orders of protection issued at the time of sentencing willbe reviewed as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Ordered that upon the appeal from the judgment, so much of the orders of protection asdirected that they remain in effect until and including September 20, 2037, are vacated, on thelaw and as a matter of discretion in the interest of justice, and the matter is remitted to the CountyCourt, Westchester County, for a new determination of the duration of the orders of protectionconsistent herewith; and it is further,
Ordered that the judgment is affirmed.
The defendant validly waived his right to appeal (see People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Ramos, 7 NY3d 737, 738[2006]; People v Lopez, 6 NY3d248, 255 [2006]; People v Hidalgo, 91 NY2d 733, 735 [1998]; People v Brown, 122 AD3d 133,142 [2014]). The defendant's valid waiver of his right to appeal forecloses appellate review of hischallenge to the factual sufficiency of his plea allocution (see People v Simpson, 152 AD3d 627, 627 [2017]; People v Smith, 146 AD3d 904,904 [2017]; People v Thompson,143 AD3d 1007, 1008 [2016]).
The defendant's contention that his plea was not knowing, voluntary, and intelligent surviveshis valid appeal waiver (see People v Smith, 146 AD3d at 904; People v Magnotta, 137 AD3d1303, 1303 [2016]). However, the defendant failed to preserve this contention for appellatereview, since he did not move to vacate his plea or otherwise raise this issue before the CountyCourt (see People v Smith, 146 AD3d at 904-905; People v Narbonne, 131 AD3d 626, 627 [2015]). Contrary to thedefendant's contention, the "rare case" exception to the preservation requirement does not applyhere because the defendant's allocution did not cast significant doubt on his guilt, negate anessential element of the crime, or call into question the voluntariness of his plea (People vLopez, 71 NY2d 662, 666 [1988]; see People v Davis, 24 NY3d 1012, 1013 [2014]; People v Stone, 91 AD3d 977, 977[2012]).
[*2] In any event, the defendant'scontention that his plea was not knowing, voluntary, and intelligent is without merit. Contrary tothe defendant's contention, the Court of Appeals has "never held that a plea is effective only if adefendant acknowledges committing every element of the pleaded-to offense . . . orprovides a factual exposition for each element of the pleaded-to offense" (People v Seeber, 4 NY3d 780, 781[2005]; see People v Goldstein, 12NY3d 295, 301 [2009]). The Court of Appeals has stated that "no catechism is required inconnection with the acceptance of a plea" (People v Goldstein, 12 NY3d at 301; seePeople v Seeber, 4 NY3d at 781), and has "refused to disturb pleas by canny defendants evenwhen there has been absolutely no elicitation of the underlying facts of the crime" (People vGoldstein, 12 NY3d at 301, citing People v Fooks, 21 NY2d 338, 350 [1967]).Rather, "[i]t is enough that the allocution shows that the defendant understood the charges andmade an intelligent decision to enter a plea" (People v Goldstein, 12 NY3d at 301). Here,the record of the plea proceeding demonstrates that the defendant understood the charges andmade an intelligent decision to enter a plea (see id.; People v Woods, 147 AD3d 1156, 1157 [2017]; People v Nichols, 77 AD3d 1339,1340 [2010]).
The defendant's contentions regarding the validity and duration of two orders of protectionissued at the time of sentencing survive his appeal waiver (see People v Kennedy, 151 AD3d 1079, 1079 [2017]; People v Bernardini, 142 AD3d671, 671 [2016]). Furthermore, the validity and duration of the orders of protection, whichwere issued upon the defendant's conviction, are issues properly before this Court on the appealfrom the judgment (see People vNieves, 2 NY3d 310, 315 [2004]). However, those contentions are unpreserved forappellate review, since the defendant did not raise them at sentencing or move to amend the finalorders of protection (see id. at 316-317; People v Rodriguez, 157 AD3d 971 [2018]; People v O'Connor, 136 AD3d945, 945 [2016]; People v Ray,67 AD3d 711, 711 [2009]). Nevertheless, we reach these issues in the exercise of ourinterest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Ortiz, 25 AD3d 811, 812[2006]).
We agree with the County Court's issuance of an order of protection in favor of aneyewitness to the crime in accordance with CPL 530.13 (4). However, as the People correctlyconcede, the duration of both orders of protection exceeded the maximum period permissibleunder CPL 530.13 (4) (A). Accordingly, we vacate so much of the orders of protection asdirected that they remain in effect until and including September 20, 2037, and remit the matterto the County Court, Westchester County, for a new determination of the duration of the ordersof protection in accordance with CPL 530.13 (4) (A) (see People v Palaguachi, 35 AD3d 767, 767-768 [2006]; Peoplev Ortiz, 25 AD3d at 812). Balkin, J.P., Miller, Hinds-Radix and Brathwaite Nelson, JJ.,concur.