| People v Perrella |
| 2020 NY Slip Op 07099 [188 AD3d 1263] |
| November 25, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Perrella, Appellant. |
Clinton W. Calhoun III, White Plains, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Robert H.Freehill, J.), rendered January 24, 2019, as amended January 25, 2019, convicting him ofaggravated vehicular homicide, upon his plea of guilty, and imposing sentence.
Ordered that the judgment, as amended, is affirmed.
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligentis unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raisethe issue before the County Court (seePeople v Pastor, 28 NY3d 1089, 1090 [2016]; People v Karadag, 181 AD3d 620, 620 [2020]) and the exception tothe preservation requirement does not apply here, because the plea allocution did not castsignificant doubt on the defendant's guilt, negate an essential element of the crime, or call intoquestion the voluntariness of his plea (see People v Palladino, 140 AD3d 1194, 1194 [2016]). In anyevent, the defendant's contention is without merit. "Although the defendant was not advised bythe County Court of each of the federal constitutional rights he was waiving by pleading guilty, aplea of guilty 'will not be invalidated solely because the Trial Judge failed to specificallyenumerate all the rights to which the defendant was entitled and to elicit from him. . . a list of detailed waivers before accepting the guilty plea' " (People v Jackson, 114 AD3d 807,807-808 [2014], quoting People vTyrell, 22 NY3d 359, 365 [2013] [internal quotation marks omitted]; see People vHarris, 61 NY2d 9, 16 [1983]). Here, the court's express advisement to the defendant that bypleading guilty he was waiving certain constitutional rights, taken together with the rationality ofthe plea and the other assurances of voluntariness provided on the record, demonstrate that thedefendant's plea of guilty was knowing, voluntary, and intelligent (see People v Pellegrino, 26 NY3d1063, 1063-1064 [2015]; People v Jackson, 114 AD3d at 808).
Contrary to the People's contention, the defendant's purported waiver of his right to appeal isinvalid (see People v Thomas, 34NY3d 545, 565-566 [2019]). During the oral colloquy, the County Court incorrectlysuggested that the waiver was an absolute bar to the taking of an appeal (see People vThomas, 34 NY3d at 566). The written waiver of the right to appeal in this case does notcure the deficiencies of the oral colloquy in that it also intimates that the waiver is an absolutebar to taking an appeal and fails to include any "clarifying language" to indicate that "appellatereview remain[s] available for certain issues" or that "the right to take an appeal [is] retained"(People v Thomas, 34 NY3d at 564; see People v Christopher B., 184 AD3d 657, 659-660 [2020]).Accordingly, the purported waiver does not preclude review of his excessive sentence claim.However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Scheinkman, P.J., Dillon, Duffy and Connolly, JJ., concur.