| People v Rodriguez |
| 2021 NY Slip Op 06502 [199 AD3d 1458] |
| November 19, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Luis Rodriguez, Appellant. |
Keem Appeals, PLLC, Syracuse (Bradley E. Keem of counsel), for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), renderedSeptember 26, 2019. The judgment convicted defendant upon a plea of guilty of aggravatedcriminal contempt.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a guilty plea ofaggravated criminal contempt (Penal Law § 215.52 [1]). As defendant contends andthe People correctly concede, defendant's purported waiver of the right to appeal is invalid.During the plea colloquy, County Court " 'conflated the right to appeal with those rightsautomatically forfeited by the guilty plea' " (People v Chambers, 176 AD3d 1600, 1600 [4th Dept 2019], lvdenied 34 NY3d 1076 [2019]; seePeople v Mothersell, 167 AD3d 1580, 1581 [4th Dept 2018]) and, therefore, the recorddoes not establish that "defendant understood that the right to appeal is separate and distinct fromthose rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]). Moreover, the court'sexplanation that the waiver would foreclose any review by a higher court "utterly'mischaracterized the nature of the right [to appeal that] defendant was being asked tocede' " (People v Thomas,34 NY3d 545, 565 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; see People v Youngs, 183 AD3d1228, 1229 [4th Dept 2020], lv denied 35 NY3d 1050 [2020]).
By failing to move to withdraw the plea or vacate the judgment of conviction, defendantfailed to preserve for our review his contention that his plea was involuntary because he did notdemonstrate, in a narrative fashion, his understanding of the criminal acts relevant to the chargefor which he pleaded guilty (see Peoplev Williams, 118 AD3d 1429, 1430 [4th Dept 2014]). This case does not fall within therare exception to the preservation requirement set forth in People v Lopez (71 NY2d 662,666 [1988]).
Defendant failed to preserve for our review his contention that the presentence report wasincomplete and inadequate (see People vMorrow, 167 AD3d 1516, 1517-1518 [4th Dept 2018], lv denied 33 NY3d 951[2019]; People v Bradford, 126AD3d 1374, 1374 [4th Dept 2015], lv denied 26 NY3d 926 [2015]). We decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [3] [c]). We reject defendant's further contention that he receivedineffective assistance of counsel based on defense counsel's failure to object to the presentencereport (see People v Jones, 148AD3d 1807, 1808 [4th Dept 2017], lv denied 29 NY3d 1082 [2017]; seegenerally People v Rivera, 71 NY2d 705, 709 [1988]).
Defendant also failed to preserve for our review his contention that the People failed tocomply with the procedural requirements of CPL 400.21 when he was sentenced as a secondfelony offender (see People vGuillory, 98 AD3d 835, 835 [4th Dept 2012], lv denied 20 NY3d [*2]932 [2012]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).Finally, we reject defendant's contention that the court abused its discretion in issuing ano-contact order of protection in favor of the victim, rather than a no-offensive-contact order (see People v Miller, 183 AD3d1268, 1269 [4th Dept 2020], lv denied 35 NY3d 1047 [2020]; People vMonacelli, 299 AD2d 916, 916 [4th Dept 2002], lv denied 99 NY2d 617 [2003]; cf. People v Jenkins, 184 AD3d1150, 1151 [4th Dept 2020], lv denied 35 NY3d 1067 [2020]).Present—Whalen, P.J., Centra, NeMoyer, Troutman and Winslow, JJ.