| People v Hernandez |
| 2020 NY Slip Op 06416 [188 AD3d 1357] |
| November 12, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ivan J. Hernandez, Appellant. |
Marlene O. Tuczinski, Chatham, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered March 27, 2018, convicting defendant upon his plea of guilty of the crimes of burglaryin the second degree and strangulation in the second degree.
In satisfaction of an eight-count indictment, defendant pleaded guilty to burglary in thesecond degree and strangulation in the second degree. The plea agreement included a waiver ofthe right to appeal. County Court thereafter sentenced defendant, as a second violent felonyoffender, to a prison term of eight years, followed by five years of postrelease supervision, for hisburglary conviction and to a lesser concurrent prison term on the remaining conviction.Defendant appeals.
We affirm. Initially, the record reflects that defendant's appeal waiver was knowing,intelligent and voluntary. County Court distinguished the right to appeal as separate and distinctfrom the rights forfeited by defendant's guilty plea, and defendant acknowledged hisunderstanding of the waiver and its ramifications. Defendant also signed a written waiver andassured the court that he had discussed the waiver with counsel and understood its contents.Although the written waiver contained some overbroad language, it also informed defendant thatcertain issues survive the waiver, including the right to a speedy trial, competency matters, thelegality of the sentence, the voluntariness of his guilty plea and "any other issue deemednon-waivable by a higher court," and indicated that such non-waivable issues could "be raised onappeal or other post-judgment collateral attack." Accordingly, under the totality of thecircumstances, we are satisfied that "the counseled defendant understood the distinction thatsome appellate review survived" (Peoplev Thomas, 34 NY3d 545, 561 [2019]; see People v Martin, 179 AD3d 1385, 1386 [2020]). As such, wefind that defendant knowingly, voluntarily and intelligently waived his right to appeal (seePeople v Martin, 179 AD3d at 1386; compare People v Martz, 181 AD3d 979, 980 [2020], lvdenied 35 NY3d 1047 [2020]).
Defendant challenges the voluntariness and factual sufficiency of his guilty plea to the chargeof strangulation in the second degree; however, these challenges are not preserved for our review,as the record does not disclose that defendant made an appropriate postallocution motion (see People v Brito, 184 AD3d 900,901 [2020]; People v Favreau, 174AD3d 1226, 1227 [2019], lv denied 34 NY3d 980 [2019]). Contrary to defendant'scontention, "this is not the 'rare case' that comes 'within the narrow exception to the preservationrequirement' inasmuch as defendant's factual recitation did not actually negate an essentialelement of the crime to which he pleaded" (People v Devault, 124 AD3d 1140, 1141 [2015], lv denied25 NY3d 989 [2015], quoting People vWorden, 22 NY3d 982, 985 [2013]; see People v Griffith, 136 AD3d 1114, 1114-1115 [2016], lvdenied 28 NY3d 1184 [2017]; compare People v McMillan, 129 AD3d 1113, 1113-1114[2015]).
Defendant's argument that County Court failed to comply with the procedural requirementsof CPL 400.15 in determining him to be a second violent felony offender has not been preservedfor our review given his failure to object at sentencing (see People v Howell, 178 AD3d 1148, 1149 [2019], lvdenied 34 NY3d 1129 [2020]; People v Quinones, 162 AD3d 1402, 1403 [2018]; People v House, 119 AD3d 1289,1290 [2014]). Defendant further contends that he was improperly sentenced as a second violentfelony offender because the People's predicate felony statement did not comply with CPL 400.15(2). His failure to raise any objection to the statement, however, renders this contentionunpreserved (see People vMeckwood, 86 AD3d 865, 867 [2011], affd 20 NY3d 69 [2012]; People v McDowell, 56 AD3d955, 956 [2008]; People vRuffin, 42 AD3d 582, 582 [2007], lv denied 9 NY3d 881 [2007]). To the extentthat defendant claims that his sentence is illegal and that he is not required to preserve theseissues, the record reflects that defendant was provided the predicate felony statement and CountyCourt discussed its contents with him at the plea proceeding. The prior felony occurred morethan 10 years prior to the commission of his current crime and the statement contained the dateswhen defendant was incarcerated between the commission of the two crimes in order to toll therunning of the statutory 10-year period (see CPL 400.15 [2]; Penal Law§ 70.04 [1] [b] [v]). Although the statement failed to identify the place or placeswhere defendant was incarcerated during the relevant time periods (see CPL 400.15 [2]),defendant admitted to the prior felony and does not dispute that he was incarcerated for therequisite time as reflected in the statement. Under these circumstances, we find substantialcompliance with CPL 400.15 (seePeople v Wiltshire, 96 AD3d 1227, 1231 [2012], lv denied 22 NY3d 1204[2014]; People v Leszczynski, 96AD3d 1162, 1164 [2012], lv denied 19 NY3d 998 [2012]; People v Wilson, 82 AD3d 797,800 [2011], lv denied 16 NY3d 901 [2011]) and, therefore, find his arguments to bewithout merit.
Finally, we reject defendant's contention that County Court should have honored a previousplea agreement offer that contained a more lenient sentence. The record reflects that defendantexpressly rejected that offer and, therefore, he has no right to specific performance thereof(see People v Anderson, 270 AD2d 509, 510-511 [2000], lv denied 95 NY2d 792[2000]; People v Hamilton, 192 AD2d 738, 740 [1993]).
Garry, P.J., Lynch, Devine and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.