People v. Balbuena

• Decision Date: 31 December 2014
• Docket Number: 105950
• Parties: The PEOPLE of the State of New York, Respondent, v. Eduardo BALBUENA, Appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1384
999 N.Y.S.2d 600
2014 N.Y. Slip Op. 09070

The PEOPLE of the State of New York, Respondent
v.
Eduardo BALBUENA, Appellant.

105950

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

Dec. 31, 2014.

999 N.Y.S.2d 601

Cappy Weiner, Kingston, for appellant, and appellant pro se.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and DEVINE, JJ.

Opinion

PETERS, P.J.

123 A.D.3d 1384

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered March 27, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Defendant, a citizen of Mexico, was charged in an indictment with burglary in the second degree after he donned a mask and

123 A.D.3d 1385

used a master key, which he had acquired through his job, to enter an apartment occupied by an elderly couple. Under the plea offer proposed by the People, defendant would plead guilty to this charge and receive a sentence of five years in prison, to be followed by five years of postrelease supervision. County Court, however, would only approve the plea offer if it included a sentence of six years in prison, to be followed by five years of postrelease supervision. Defendant agreed to the longer sentence and entered a plea of guilty to burglary in the second degree. When the parties appeared for sentencing, County Court indicated its unwillingness to impose the agreed-upon sentence based upon information contained in the presentence investigation report. The court gave defendant the option either to withdraw his guilty plea and go to trial or to proceed with his guilty plea and receive a sentence of seven years in prison, to be followed by five years of postrelease supervision, and also to waive his right to appeal. Defendant elected to do the latter and executed a written waiver of the right to appeal that advised him, among other

999 N.Y.S.2d 602

things, of the immigration consequences of his plea. He was sentenced to seven years in prison, to be followed by five years of postrelease supervision, and he now appeals.

Inasmuch as County Court properly distinguished the waiver of the right to appeal from the rights that defendant had automatically forfeited by virtue of his guilty plea, ensured that defendant understood the rights that he was waiving and had defendant execute a detailed written waiver in open court that indicated, among other things, that he had an opportunity to discuss the waiver with counsel, we find that the appeal waiver was knowing, voluntary and intelligent (see People v. Lyman, 119 A.D.3d 968, 969, 988 N.Y.S.2d 717 [2014] ; People v. Dyckman, 114 A.D.3d 994, 995, 979 N.Y.S.2d 872 [2014], lv. denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ). Defendant's contention that his plea was involuntary because County Court did not inform him of the deportation consequences of the plea survives the waiver of his right to appeal (see People v. Miner, 120 A.D.3d 1449, 1449, 991 N.Y.S.2d 679 [2014] ; People v. Waite, 120 A.D.3d 1446, 1447, 994 N.Y.S.2d 201 [2014] ; People v. Jackson, 119 A.D.3d 1288, 1288, 990 N.Y.S.2d 361 [2014] ). However, this issue was not preserved by a postallocution motion on such ground (see People v. Sylvan, 107 A.D.3d 1044, 1045, 968 N.Y.S.2d 628 [2013], lv. denied 22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619 [2014] ). Further, no exception to the preservation requirement is applicable because defendant had knowledge of...