| People v Kaye |
| 2021 NY Slip Op 00191 [190 AD3d 767] |
| January 13, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Kaye, Appellant. |
Kelley M. Enderley, Poughkeepsie, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M.Forman, J.), rendered March 7, 2019, convicting him of bribing a witness, aggravated familyoffense (12 counts), and criminal contempt in the first degree, upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid because the CountyCourt's oral colloquy mischaracterized the appellate rights waived as encompassing a bar to filingan appellate brief and the loss of attendant rights to counsel and poor person relief (see People v Thomas, 34 NY3d545, 560-564 [2019]; People vSealey, 187 AD3d 1067 [2020]; People v Walder, 186 AD3d 1272, 1272 [2020]). Although thePeople cite to a written waiver that apparently was signed by the defendant, the court "failed toconfirm that [the defendant] understood the contents of the written waiver[ ]" (People vThomas, 34 NY3d at 566; seePeople v Christopher B., 184 AD3d 657, 659 [2020]; People v Slade, 180 AD3d 1073,1075 [2020]).
Nevertheless, even though the purported appeal waiver is not valid, the defendant's challengeto the factual sufficiency of his plea allocution is unpreserved for appellate review, as he did notmove to vacate his plea or otherwise raise the issue before the County Court (see CPL470.05 [2]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Negriel, 181 AD3d 724,725 [2020]). Contrary to the defendant's contention, the exception to the preservationrequirement does not apply to this case because the defendant's allocution did not cast significantdoubt on his guilt, negate an essential element of the crime, or call into question the voluntarinessof the plea (see People v Lopez, 71 NY2d at 666; People v Negriel, 181 AD3d at725). Further, this was not one of the "rare cases where the defendant lacks a reasonableopportunity to object to a fundamental defect in the plea which is clear on the face of the recordand to which 'the court's attention should have been instantly drawn,' such that 'the salutarypurpose of the preservation rule is . . . not jeopardized' " (People v Williams, 27 NY3d 212,214 [2016], quoting People v Lopez, 71 NY2d at 666).
In any event, "an allocution based on a negotiated plea need not elicit from a defendantspecific admissions as to each element of the charged crime" (People v Goldstein, 12[*2]NY3d 295, 301 [2009]; see People v Lopez, 71 NY2dat 666 n 2). "A plea allocution is sufficient if it shows that the defendant understood the chargesand made an intelligent decision to enter a plea" (People v Negriel, 181 AD3d at 725[internal quotation marks omitted]). The record here shows that the defendant understood thecharges and made an intelligent decision to enter the plea.
The County Court did not improvidently exercise its discretion by refusing to order a mentalhealth evaluation of the defendant pursuant to CPL 390.30 (2) (see People v Bey, 140 AD3d 1079,1080 [2016]; People v Geigel, 168 AD2d 229, 229-230 [1990]; People vBuchicchio, 116 AD2d 729, 730 [1986]).
The defendant's remaining contention is unpreserved for appellate review (see CPL470.05 [2]) and, in any event, without merit. Austin, J.P., Barros, Connolly and Iannacci, JJ.,concur.