| People v Favreau |
| 2019 NY Slip Op 05812 [174 AD3d 1226] |
| July 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v William Favreau, Appellant. |
Jacob A. Vredenburgh, Wynantskill, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Clinton County (Bruno, J.),rendered March 17, 2017, convicting defendant upon his plea of guilty of the crime of rape in thesecond degree.
In satisfaction of a six-count indictment charging defendant with rape in the first degree andother crimes, defendant pleaded guilty to the reduced charge of rape in the second degree underthe first count of the indictment. Pursuant to the terms of the plea agreement, which included awaiver of appeal, defendant was promised a prison sentence of five years followed by five yearsof postrelease supervision. At sentencing, County Court imposed the agreed-upon sentence ondefendant, as an admitted second felony offender. Defendant appeals.[FN*]
We affirm. Initially, we agree with defendant that his waiver of appeal is not valid. Althoughan appeal waiver was recited as a condition of the plea agreement, defendant never actuallywaived this right during the plea allocution and the record does not reflect that he had a" 'full appreciation of the consequences' " of the waiver so as to establish that itwas knowing, voluntary and intelligent (People v Bradshaw, 18 NY3d 257, 264 [2011], quoting Peoplev Seaberg, 74 NY2d 1, 11 [1989]). Although the record contains a written waiver of appealapparently executed on the day of the plea allocution, County Court (Ryan, J.) "did notadequately ensure that defendant had read the waiver or understood its contents or ramifications"(People v Alolafi, 170 AD3d1379, 1380 [2019]; see People vHaenelt, 161 AD3d 1489, 1489 [2018], lv denied 31 NY3d 1148 [2018]).
Defendant's challenges to his guilty plea as not knowing, voluntary and intelligent, and to thesufficiency of the factual allocution, were not preserved by an appropriate postallocution motion,despite ample time to do so (see CPL 220.60 [3]; People v Williams, 27 NY3d 212, 219-222 [2016]; People vLopez, 71 NY2d 662, 665 [1988]; People v Kruppenbacher, 163 AD3d 1266, 1267 [2018], lvdenied 32 NY3d 1065 [2018]; People v Butler, 134 AD3d 1349, 1350 [2015], lv denied 27NY3d 963 [2016]). Contrary to defendant's claims, a pleading defendant need not recite everyelement of the crime or provide a "factual exposition" (People v Seeber, 4 NY3d 780, 781 [2005]). Moreover, where, ashere, a defendant pleads to a lesser crime as part of a plea bargain, the court is "not required toengage in a factual recitation in order to establish the elements of the crime" (People v Hollenbeck, 152 AD3d974, 975 [2017] [internal quotation marks and citation omitted], lv denied 30 NY3d1061 [2017]; see People v Clairborne, 29 NY2d 950, 951 [1972]); under thesecircumstances, "no factual basis for the plea is required" and a defendant " 'can evenplead guilty to crimes that do not exist' " (People v Banks, 137 AD3d 1458, 1459 [2016], quoting People v Johnson, 23 NY3d 973,975 [2014]). Contrary to his claim, defendant did not make any statements during his pleaallocution or at sentencing that were inconsistent with his guilt of the reduced crime or calledinto question the voluntariness of his plea so as to trigger the narrow exception to thepreservation rule (see People vTyrell, 22 NY3d 359, 363-364 [2013]; People v Lopez, 71 NY2d at 666).Defendant's statements at sentencing disparaging the victim's motives and veracity did notimpose upon County Court (Bruno, J.) a duty of further inquiry (cf. People v Brassard, 166 AD3d1312, 1313 [2018]; People vChin, 160 AD3d 1038, 1039-1040 [2018]). Defendant's remaining claims also lackmerit.
Egan Jr., J.P., Lynch, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendant's pro senotice of appeal contains an incorrect date for the judgment of conviction, we exercise ourdiscretion to overlook this inaccuracy and treat the notice of appeal as valid (see CPL460.10 [6]; People v Dunn, 160AD3d 1202, 1202 n [2018]).