| People v Lollie |
| 2022 NY Slip Op 02679 [204 AD3d 1430] |
| April 22, 2022 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v CJLollie, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Nathaniel V. Riley of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.),rendered August 26, 2020. The judgment convicted defendant upon his plea of guilty of assaultin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of assault inthe first degree (Penal Law § 120.10 [1]), defendant contends that his waiver of theright to appeal is invalid, that he was improperly sentenced as a second felony offender, and thathis negotiated sentence is unduly harsh and severe. We conclude that, during the plea colloquy,Supreme Court "made clear to defendant that the right to appeal was separate and distinct fromthe other rights that are automatically forfeited upon a plea of guilty" (People v Johnson, 140 AD3d1738, 1738 [4th Dept 2016]) and specifically informed defendant that the waiver of the rightto appeal precluded him from challenging the severity of the bargained-for sentence (see People v Lopez, 6 NY3d 248,255-256 [2006]; cf. People vMaracle, 19 NY3d 925, 928 [2012]; People v Fowler, 134 AD3d 1529, 1530 [4th Dept 2015], lvdenied 27 NY3d 996 [2016]). Consequently, defendant knowingly, voluntarily, andintelligently waived the right to appeal (see generally Lopez, 6 NY3d at 256), and thevalid waiver encompasses his challenge to the severity of the sentence (see generally People vLococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91 NY2d 733, 737[1998]).
With respect to defendant's contention that he was improperly sentenced as a second felonyoffender, the People correctly concede that a challenge to the legality of the sentence is notforeclosed by the valid waiver of the right to appeal (see Lopez, 6 NY3d at 255; People v Lopez, 164 AD3d 1625,1625 [4th Dept 2018], lv denied 32 NY3d 1174 [2019]).
Defendant contends that he was improperly sentenced as a second felony offender becausethe federal predicate conviction is not the equivalent of a New York felony, but he failed topreserve that contention for our review (see People v Wingfield, 181 AD3d 1253, 1254 [4th Dept 2020],lv denied 35 NY3d 1050 [2020], denied reconsideration 35 NY3d 1098 [2020]), andit does not fall within the narrow exception to the preservation rule that applies "when asentence's illegality is readily discernible from the trial record" (People v Santiago, 22 NY3d 900,903 [2013]). Indeed, the record submitted to this Court is insufficient to determine whether thefederal conviction is the equivalent of a New York felony. Inasmuch as, under thesecircumstances, "[a] CPL 440.20 motion is the proper vehicle for raising a challenge to a sentenceas 'unauthorized, illegally imposed or otherwise invalid as a matter of law' (CPL 440.20 [1]), anda determination of second felony offender status is an aspect of the sentence" (People v Jurgins, 26 NY3d 607,612 [2015]), we decline to exercise our power to review defendant's contention as a matter ofdiscretion in the interest of justice (see Wingfield, 181 AD3d at 1254; cf. People v Hall, 149 AD3d 1610,1610 [4th Dept 2017]).
[*2] Defendant alsocontends that he was improperly sentenced as a second felony offender because the predicatefelony offender statement failed to include the requisite tolling periods. Defendant, however,failed to preserve that contention and it is not reviewable under the narrow illegal sentenceexception to the preservation requirement because the illegality of the sentence is "not 'readilydiscernible from the trial record' " (People v Lashley, 37 NY3d 1140, 1141 [2021]).
Defendant further failed to preserve for our review his contention that he was not properlysentenced as a second felony offender because the court failed to inform him of his right tocontest the predicate conviction (seePeople v Manigault, 145 AD3d 1428, 1430 [4th Dept 2016], lv denied 29 NY3d950 [2017]; People v Irvin, 111AD3d 1294, 1296-1297 [4th Dept 2013], lv denied 24 NY3d 1044 [2014], deniedreconsideration 26 NY3d 930 [2015]; see generally CPL 400.21 [3]). In any event,that contention lacks merit. Defendant acknowledged his prior conviction and we conclude that"the record establishes that defendant had an opportunity to controvert the allegations in thesecond felony offender statement but did not do so" (Manigault, 145 AD3d at 1430;see Irvin, 111 AD3d at 1297; cf. People Davis [appeal No. 1], 226 AD2d 1081,1081 [4th Dept 1996], lv denied 88 NY2d 935 [1996]).
Finally, we reject defendant's contention that he was denied effective assistance of counselbased on defense counsel's failure to raise any challenge to the predicate felony offenderstatement (see People v Barton, 200 AD2d 888, 888 [3d Dept 1994], lv denied 83NY2d 849 [1994]; see also People v Crippa, 245 AD2d 811, 812 [3d Dept 1997], lvdenied 92 NY2d 850 [1998]). Here, defense counsel negotiated a plea that "substantiallyreduced defendant's exposure to a much more lengthy term of imprisonment" (Barton,200 AD2d at 888). We conclude that "[i]n negotiating the plea in question, it cannot be said thatdefense counsel did not provide meaningful representation" (id.; see generally Peoplev Baldi, 54 NY2d 137, 146-147 [1981]). Present—Centra, J.P., Peradotto, Lindley,NeMoyer and Curran, JJ.