People v. Abdul

• Court: New York Supreme Court Appellate Division
• Writing for the Court: DANIEL D. ANGIOLILLO
• Citation: 112 A.D.3d 644,976 N.Y.S.2d 187,2013 N.Y. Slip Op. 08093
• Parties: The PEOPLE, etc., respondent, v. Khairual ABDUL, appellant.
• Decision Date: 04 December 2013

112 A.D.3d 644
976 N.Y.S.2d 187
2013 N.Y. Slip Op. 08093

The PEOPLE, etc., respondent,
v.
Khairual ABDUL, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 4, 2013.

[976 N.Y.S.2d 188]

Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

ORDERED that judgment is affirmed.

The defendant knowingly, voluntarily, and intelligently waived her right to appeal as part of her negotiated plea agreement ( see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754). The defendant's valid waiver of her right to appeal precludes appellate review of her challenge to the factual sufficiency of the plea allocution ( see People v. Crews, 92 A.D.3d 795, 938 N.Y.S.2d 475; People v. Hardee, 84 A.D.3d 835, 922 N.Y.S.2d 785).

Although the defendant's challenge to the voluntariness of the plea survives her waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022), the defendant has failed to preserve this contention for appellate review, since she did not move to withdraw her plea on this ground

[976 N.Y.S.2d 189]

prior to the imposition of sentence ( seeCPL 220.60 [3]; 470.05[2]; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160; People v. Andrea, 98 A.D.3d 627, 949 N.Y.S.2d 654). The “rare case” exception to the preservation rule does not apply here because the defendant's plea allocution did not cast significant doubt upon her guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; see People v. Gibson, 95 A.D.3d 1033, 944 N.Y.S.2d 237).

The defendant contends that the County Court erred in denying her motion to strike certain allegedly inaccurate information from the presentence investigation report. She contends that her waiver of the right to appeal did not encompass this issue since, at the time she entered into the waiver, there was no specific reference to the presentence investigation report. Contrary to this contention, “an unrestricted waiver of the right to appeal, knowingly, voluntarily and...