People v. Atkinson

• Decision Date: 29 January 2015
• Citation: 2015 N.Y. Slip Op. 00664,2 N.Y.S.3d 687,124 A.D.3d 1149
• Parties: The PEOPLE of the State of New York, Respondent, v. Shahean A. ATKINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1149

2 N.Y.S.3d 687

2015 N.Y. Slip Op. 00664

The PEOPLE of the State of New York, Respondent,

v.Shahean A. ATKINSON, Appellant.

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

Jan. 29, 2015

Affirmed. John P.M. Wappett, Public Defender, Lake George (Marcy I. Flores of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and CLARK, JJ.McCARTHY, J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered June 26, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant waived indictment and was charged in a superior court information with criminal sale of a controlled substance in the third degree. He pleaded guilty to this charge and waived his right to appeal, both orally and in writing. He was sentenced in accordance with the plea agreement to four years in prison, to be followed by two years of postrelease supervision. Defendant appeals.

Defendant challenges the factual sufficiency of his plea allocution as well as the severity of his sentence. A valid waiver of the right to appeal precludes a defendant from raising these claims ( see People v. Torres, 117 A.D.3d 1497, 1498, 984 N.Y.S.2d 530 [2014], lvs. denied 24 N.Y.3d 963, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014], 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014]; People v. Perry, 50 A.D.3d 1244, 1245, 855 N.Y.S.2d 733 [2008], lv. denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453 [2008] ). However, the record here reveals that defendant's appeal waiver was deficient inasmuch as he was not clearly advised that the right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty, and County Court did not make a proper inquiry to confirm that defendant had been advised and understood the significance of the written waiver ( see People v. Chappelle, 121 A.D.3d 1166, 1167, 994 N.Y.S.2d 435 [2014]; People v. Burgette, 118 A.D.3d 1034, 1035, 986 N.Y.S.2d 362 [2014] ). In view of this, defendant is not foreclosed from raising these claims. Nevertheless, the record does not indicate that defendant moved to withdraw his guilty plea based upon the factual insufficiency of the allocution, which he now asserts, and for this reason his claim regarding the factual sufficiency of his plea is not preserved ( see People v. Wasley, 119 A.D.3d 1216, 1216, 989 N.Y.S.2d 402 [2014], lv. denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014]; see also People v. O'Neill, 116 A.D.3d 1240, 1241, 983 N.Y.S.2d 738 [2014] ). The narrow exception to the preservation rule is inapplicable inasmuch as the record does not disclose that defendant made statements casting doubt upon his guilt or negating a material element of the crime ( see People v. Rouse, 119 A.D.3d 1161, 1162–1163, 989 N.Y.S.2d 395 [2014]; People v. Pearson, 110 A.D.3d 1116, 1116, 972 N.Y.S.2d 359 [2013] ).

As for the sentence, it is...