| People v Votra |
| 2019 NY Slip Op 04552 [173 AD3d 1643] |
| June 7, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jason R. Votra, Appellant. |
D.J. & J.A. Cirando, PLLC, 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 (Donald E. Todd, J.), renderedNovember 22, 2016. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fifth 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 ofcriminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [1]). Contrary to defendant's contention, the record establishes that heknowingly, intelligently, and voluntarily waived his right to appeal, and that he understood thatthe right to appeal is separate and distinct from the rights automatically forfeited by pleadingguilty (see People v Bryant, 28NY3d 1094, 1096 [2016]; People vMoore, 158 AD3d 1312, 1312 [4th Dept 2018], lv denied 31 NY3d 1015[2018]).
Even assuming, arguendo, that defendant's contention that the proceedings wereelectronically recorded and later transcribed in violation of Judiciary Law § 295survives both the guilty plea and waiver of the right to appeal (see generally People vHarrison, 85 NY2d 794, 796-797 [1995]), we conclude that the contention is unpreservedbecause defendant did not object to the use of the electronic recording device or the absence of astenographer (see People v Bennett,165 AD3d 1624, 1625 [4th Dept 2018]; People v Rogers, 159 AD3d 1558, 1559 [4th Dept 2018], lvdenied 31 NY3d 1152 [2018]). Regardless, neither reversal nor a reconstruction hearing isrequired here because defendant failed to demonstrate that he was prejudiced by the use of atranscribed recording instead of a stenographer (see Harrison, 85 NY2d at 796; cf. People v Henderson, 140 AD3d1761, 1761 [4th Dept 2016]).
Although not precluded by the valid waiver of the right to appeal, defendant's contention thathis guilty plea was not knowing, intelligent, and voluntary is not preserved because he did notmove to withdraw the plea or to vacate the judgment of conviction on the ground now assertedon appeal (see People v Smith, 162AD3d 1597, 1597 [4th Dept 2018], lv denied 32 NY3d 941 [2018]; People v Sanford, 138 AD3d 1435,1436 [4th Dept 2016]).
Finally, the valid waiver of the right to appeal encompasses defendant's challenge to theseverity of the sentence. Present—Whalen, P.J., Centra, DeJoseph, Curran and Winslow,JJ.