| People v Allevato |
| 2019 NY Slip Op 01676 [170 AD3d 1264] |
| March 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael F. Allevato, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Aarons, J. Appeals (1) from a judgment of the County Court of Otsego County (Burns, J.),rendered July 22, 2016, convicting defendant upon his plea of guilty of the crime of rape in thefirst degree, and (2) by permission, from an order of said court, entered May 5, 2017, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
In satisfaction of a three-count indictment, defendant pleaded guilty to rape in the firstdegree. Consistent with the terms of the plea agreement, defendant was sentenced to a prisonterm of eight years, to be followed by 10 years of postrelease supervision. Thereafter, defendantmoved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that hereceived the ineffective assistance of counsel. The motion was denied by County Court without ahearing. Defendant appeals from the judgment of conviction and, by permission, from the orderdenying his CPL 440.10 motion.
As an initial matter, we agree with defendant that his waiver of the right to appeal wasinvalid. County Court's brief statements to defendant failed to adequately explain the right toappeal, nor does the record indicate that the court "ensure[d] that defendant grasped the minimalinformation pertaining to the appeal waiver it provided during the plea colloquy" (People v Bradshaw, 18 NY3d 257,265 [2011]; see People v Mallard,163 AD3d 1350, 1350-1351 [2018], lv denied 32 NY3d 1066 [2018]; People v Lewis, 138 AD3d 1346,1347 [2016], lv denied 28 NY3d 1073 [2016]; People v Davis, 136 AD3d 1220, 1221 [2016], lv denied 27NY3d 1068 [2016]; People v Pope,129 AD3d 1389, 1389-1390 [2015]). Furthermore, defendant did not execute a writtenwaiver of appeal until sentencing, and the court never confirmed at that time whether defendantunderstood the contents thereof (seePeople v White, 163 AD3d 1358, 1358 [2018], lv denied 32 NY3d 1009 [2018];People v Braye, 161 AD3d1456, 1457 [2018]; People vThompson, 157 AD3d 1141, 1141 [2018]; People v Metayeo, 155 AD3d 1239, 1240 [2017]; People vPope, 129 AD3d at 1389-1390). That said, although defendant is not foreclosed fromchallenging the severity of his sentence, we discern no abuse of discretion or extraordinarycircumstances warranting a modification in the interest of justice (see People vThompson, 157 AD3d at 1142; People v Ero, 139 AD3d 1248, 1250 [2016], lv denied 28NY3d 929 [2016]).
In the absence of a motion to withdraw his plea, defendant's challenge to the voluntariness ofhis plea was not preserved in his direct appeal (see People v Lewis, 138 AD3d at 1347;People v Lang, 127 AD3d1253, 1255 [2015]). For similar reasons, defendant's claim that his plea was invalid due tothe ineffective assistance of counsel is unpreserved (see People v Brewer, 155 AD3d 1447, 1449 [2017]). We furtherconclude that the narrow exception to the preservation requirement does not apply (see People v Tamah, 133 AD3d923, 924 [2015]). In this regard, the record reflects that when County Court asked defendantwhether he had engaged in sexual intercourse with a person less than 13 years old, he responded,"Yep. What am I supposed to say? Forced into this." The court, however, explicitly stated todefendant in response to this comment, "I'm sorry, . . . I didn't catch that." Defensecounsel then requested a moment to speak with defendant. After defendant spoke with hiscounsel, the court then inquired of defendant, "[W]as there something else you wanted to say tome?" Defendant responded, "Nope." Under these particular circumstances, where the court didnot hear defendant's comment and defendant did not reiterate it after being presented with anopportunity to do so, we cannot say that the court should have made a further inquiry to ensurethat the plea was being made knowingly and voluntarily.
As to defendant's CPL 440.10 motion, defendant failed to demonstrate that "the nonrecordfacts sought to be established are material and would entitle him to relief" (People vSatterfield, 66 NY2d 796, 799 [1985]; see People v Jones, 161 AD3d 1311, 1313-1314 [2018], lvdenied 31 NY3d 1118 [2018]). Furthermore, defense counsel secured a favorable plea fordefendant, who noted at the time of the plea that he was satisfied with counsel's representation ofhim, and nothing in the record casts doubt upon counsel's effectiveness (see People v Cooper, 126 AD3d1046, 1047-1048 [2015], lv denied 26 NY3d 966 [2015]; People v Sylvan, 108 AD3d 869,870 [2013], lv denied 22 NY3d 1091 [2014]; People v Lee, 51 AD3d 1217, 1218 [2008]; People v White, 47 AD3d 1062,1064 [2008], lv denied 10 NY3d 818 [2008]; People v Vinals, 2 AD3d 1210, 1211 [2003]). Accordingly,defendant's motion was properly denied without a hearing (see People v Pecararo, 83 AD3d 1284, 1286-1287 [2011], lvdenied 17 NY3d 820 [2011]). Defendant's remaining arguments have been considered andare without merit.
Lynch, J.P., Clark, Mulvey and Devine, JJ., concur. Ordered that the judgment and order areaffirmed.