People v. Barrett

• Citation: 105 A.D.3d 862,962 N.Y.S.2d 673,2013 N.Y. Slip Op. 02410
• Parties: The PEOPLE, etc., respondent, v. Devon BARRETT, appellant.
• Decision Date: 10 April 2013
• Court: New York Supreme Court Appellate Division

105 A.D.3d 862
962 N.Y.S.2d 673
2013 N.Y. Slip Op. 02410

The PEOPLE, etc., respondent,
v.
Devon BARRETT, appellant.

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

April 10, 2013.

[962 N.Y.S.2d 674]

Thomas T. Keating, Dobbs Ferry, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Donald Berk of counsel; Matthew C. Frankel on the brief), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

[105 A.D.3d 862]Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Ayres, J.), rendered April 26, 2011, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Kase, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, under the particular facts of this case, the defendant's purported waiver of his right [105 A.D.3d 863]to appeal was invalid ( see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172;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. Vasquez, 101 A.D.3d 1054, 956 N.Y.S.2d 171;People v. Jacob, 94 A.D.3d 1142, 1143–1144, 942 N.Y.S.2d 627;People v. Remington, 90 A.D.3d 678, 679, 933 N.Y.S.2d 891;People v. Mayo, 77 A.D.3d 683, 684, 908 N.Y.S.2d 353).

However, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review ( seeCPL 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. Stone, 91 A.D.3d 977, 977, 937 N.Y.S.2d 630). Moreover, the “rare case” exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;see People v. Stone, 91 A.D.3d at 977, 937 N.Y.S.2d 630;People v. Young, 88 A.D.3d 918, 918, 931 N.Y.S.2d 235). In any event, the plea allocution was sufficient since “the allocution

[962 N.Y.S.2d 675]

shows that the defendant understood the charges and made an intelligent decision to enter a plea” ( People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692).

Contrary to the defendant's contention, the Supreme Court did not fail to adequately set forth “its fact-findings, legal conclusions, and reasons for its...