| People v Brown |
| 2022 NY Slip Op 02917 [204 AD3d 1519] |
| April 29, 2022 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Ryan Brown, Appellant. (Appeal No. 2.) |
Keem Appeals, PLLC, Syracuse (Bradley E. Keem of counsel), for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kaitlyn M. Guptill of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), renderedApril 30, 2019. The judgment convicted defendant, upon his plea of guilty, of hinderingprosecution in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of hindering prosecution in the first degree (Penal Law § 205.65). We affirm.
Defendant's challenges to the voluntariness of his guilty plea are unpreserved for appellatereview (see People v Rodriguez, 199AD3d 1458, 1458-1459 [4th Dept 2021], lv denied 37 NY3d 1164 [2022]), and thenarrow exception to the preservation rule set forth in People v Lopez (71 NY2d 662, 666[1988]) does not apply in this case because defendant said "[n]othing . . . during theplea colloquy itself" that negated an element of the pleaded-to crime or otherwise called intodoubt the voluntariness of his plea (People v Mobayed, 158 AD3d 1221, 1222 [4th Dept 2018], lvdenied 31 NY3d 1015 [2018]; seealso People v Romanowski, 196 AD3d 1081, 1082 [4th Dept 2021], lv denied 37NY3d 1029 [2021]). Contrary to defendant's assertion, which finds support in a line of ThirdDepartment cases that we declined to follow in Mobayed (see e.g. People v Gresham, 151 AD3d1175, 1178 [3d Dept 2017]), we reiterate that a trial court has no duty, in the absence of amotion to withdraw a guilty plea, to conduct a further inquiry concerning the plea's voluntariness"based upon comments made by [the] defendant during . . . sentencing"(Mobayed, 158 AD3d at 1223; see People v Vogt, 150 AD3d 1704, 1705 [4th Dept 2017]; People v Garbarini, 64 AD3d1179, 1179 [4th Dept 2009], lv denied 13 NY3d 744 [2009]; People v Sands, 45 AD3d 414, 415[1st Dept 2007], lv denied 10 NY3d 816 [2008]).
As the Court of Appeals emphasized in Lopez itself, the trial court's duty of furtherinquiry is triggered only when a defendant makes a negating or undermining statementbefore the trial court "accepts" his or her guilty plea (71 NY2d at 666). Indeed, the entireLopez rule is framed around the trial court's "duty" to "not accept" a negatedguilty plea unless the defendant, during a further inquiry, provides sufficient assurances of theplea's voluntariness (id. [emphasis added]). The Lopez rule thus cannot be appliedto statements made by the defendant after the plea's valid acceptance, and to ourknowledge the Court of Appeals has never extended Lopez to require the sua spontereopening of a plea colloquy based upon the defendant's post-plea statements. Contrary tothe Third Department's position (see e.g. Gresham, 151 AD3d at 1178), the Court ofAppeals did not expand the Lopez rule to such post-plea statements in People v Pastor (28 NY3d 1089[2016]); rather, the Court of Appeals' memorandum in that case noted that the defendant "saidnothing during the plea colloquy or the sentencing proceeding that negated an element of thecrime or raised the possibility of a justification defense" (id. at 1090-1091), and itdeclined to apply the Lopez rule under those circumstances. Pastor never [*2]explicitly held that the Lopez rule would have beentriggered had the defendant said something at sentencing that negated an element of the crime towhich he had already pleaded guilty, and the Court of Appeals' subsequent characterization ofPastor and related caselaw in People v Delorbe (35 NY3d 112, 119-121 [2020]) further confirmsour conclusion that Pastor did not implicitly extend the Lopez rule to adefendant's post-plea statements. Indeed, the Third Department's interpretation of Pastorincentivizes defendants to forgo formal plea-withdrawal motions in favor of oblique negatingcommentary at sentencing; after all, since the Lopez rule forbids the acceptanceand approval of a negated guilty plea without sufficient follow-up assurances from the defendantpersonally (see 71 NY2d at 666), applying that rule to post-plea commentary wouldeffectively afford every defendant the unfettered option to withdraw his or her guilty plea atsentencing simply by negating an element of the pleaded-to crime and thereafter refusing to offerthe follow-up assurances contemplated by Lopez. We cannot countenance such aprocedure; "the law favors the finality of guilty pleas and they are not to be undone lightly or atthe whim of the defendant" (People v White, 137 AD2d 859, 859 [2d Dept 1988]).
In any event, defendant said nothing at the sentencing hearing that negated an element of thecrime to which he previously pleaded guilty (compare Penal Law § 205.65,with § 20.00; seegenerally People v Fisher, 28 NY3d 717, 722-725 [2017]). Moreover, defendant'ssubstantive challenges to the voluntariness of his guilty plea are without merit (see People v Alexander, 19 NY3d203, 219 [2012]; People vAdams, 201 AD3d 1311, 1313 [4th Dept 2022]; People v Rathburn, 178 AD3d 1421, 1422 [4th Dept 2019], lvdenied 35 NY3d 944 [2020]). Finally, although defendant correctly contends that his waiverof the right to appeal is invalid (seePeople v Thomas, 34 NY3d 545, 562-563 [2019], cert denied 589 US &mdash,140 S Ct 2634 [2020]), we conclude that his sentence is not unduly harsh or severe.Present—Lindley, J.P., NeMoyer, Curran, Winslow and Bannister, JJ.