| People v Huntley |
| 2019 NY Slip Op 07957 [177 AD3d 1032] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Niquasia Huntley, Also Known as Quada,Appellant. |
Mark A. Diamond, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered August 7, 2017, convicting defendant upon her plea of guiltyof the crime of robbery in the first degree.
In full satisfaction of an 11-count indictment, defendant pleaded guilty to robbery inthe first degree and waived her right to appeal. County Court then sentenced her, as asecond felony offender and in accordance with the terms of the plea agreement, to aprison term of nine years, followed by five years of postrelease supervision, and issuedan order of protection in favor of the victim. Defendant appeals.
Defendant initially contends that her plea was not knowing, voluntary and intelligentbecause her factual allocution did not establish each element of robbery in the firstdegree. Essentially, this amounts to a challenge to the factual sufficiency of the pleaallocution that, despite defendant's contention to the contrary, is precluded by herunchallenged waiver of the right to appeal (see People v Hummel-Parker, 171 AD3d 1397, 1398[2019]; People v Peryea,169 AD3d 1120, 1121 [2019], lv denied 33 NY3d 980 [2019]). To theextent that defendant's contention constitutes a challenge to the voluntariness of her plea,which survives even a valid appeal waiver, it is unpreserved for our review as the recorddoes not reflect that defendant made an appropriate postallocution motion, despite ampletime to do so prior to sentencing (see People v Favreau, 174 AD3d 1226, 1227 [2019]; People v Putman, 169 AD3d1114, 1115 [2019]), and the narrow exception to the preservation requirement wasnot triggered here (see People vPastor, 28 NY3d 1089, 1090-1091 [2016]; People v Lopez, 71 NY2d662, 666 [1988]).
Defendant next claims that County Court failed to comply with the requirements ofCPL 530.13 (4) by not articulating its reasons for issuing the subject order of protection.Assuming that this argument survives defendant's unchallenged waiver of the right toappeal (see People vCollins, 117 AD3d 1535, 1535 [2014], lv denied 24 NY3d 1082 [2014];People v Kulyeshie, 71AD3d 1478, 1479 [2010], lv denied 14 NY3d 889 [2010]), it is also notpreserved as defendant failed to raise this issue at sentencing and did not move to amendthe final order of protection on this ground (see People v Bryant, 132 AD3d 502, 502 [2015], lvdenied 26 NY3d 1086 [2015]; People v Fortier, 130 AD3d 642, 643 [2015], lvdenied 26 NY3d 967 [2015]), and the illegal sentence exception to the preservationrule is inapplicable (see Peoplev Nieves, 2 NY3d 310, 315-317 [2004]). In any event, the Criminal ProcedureLaw only imposes such requirement upon the court when, unlike here, a temporary orderof protection was initially issued (see CPL 530.13 [4]).
Lastly, defendant's claim that she was illegally sentenced as a second felony offenderbecause County Court did not comply with the requirements of CPL 400.21 (3) survivesthe appeal waiver (see People v Callahan, 80 NY2d 273, 280 [1992]; People v Parker, 121 AD3d1190, 1190 [2014]; Peoplev Ladson, 30 AD3d 836, 837 [2006], lv denied 7 NY3d 814 [2006]), butit is unpreserved for our review given the lack of an objection by defendant at sentencing(see People v Stewart, 156AD3d 1059, 1059 [2017]; People v Melton, 136 AD3d 1069, 1070 [2016], lvdenied 27 NY3d 1002 [2016]; People v Jackson, 114 AD3d 807, 809 [2014], lvdenied 22 NY3d 1199 [2014]). In any event, the court was not obligated to expresslyadvise defendant of her right to contest the constitutionality of the prior conviction(see People v Melton, 136 AD3d at 1070; People v Dixon, 118 AD3d 1188, 1189 [2014]); defendantwas provided with notice of her predicate felony conviction prior to sentencing, given anopportunity to be heard regarding as much and, upon the court's inquiry, admitted thatshe was the person convicted of the felony in the predicate felony statement. Thus, underthese circumstances, we would find that there was substantial compliance with CPL400.21 (3) (see People v Stewart, 156 AD3d at 1059; People v Thorpe, 141 AD3d927, 935 [2016], lv denied 28 NY3d 1031 [2016]; People v Densmore, 120 AD3d844, 845 [2014]; People vMorse, 111 AD3d 1161, 1161 [2013], lv denied 23 NY3d 1040 [2014];People v Walton, 101 AD3d1489, 1490 [2012], lv denied 20 NY3d 1105 [2013]).
Garry, P.J., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.