People v. Blanchard

• Decision Date: 19 November 2020
• Docket Number: 108322
• Citation: 188 A.D.3d 1414,136 N.Y.S.3d 492
• Parties: The PEOPLE of the State of New York, Respondent, v. Doc M. BLANCHARD, Appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1414
136 N.Y.S.3d 492

The PEOPLE of the State of New York, Respondent,
v.
Doc M. BLANCHARD, Appellant.

108322

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

Calendar Date: October 13, 2020
Decided and Entered: November 19, 2020

136 N.Y.S.3d 493

Dana L. Salazar, East Greenbush, for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.

Before: Egan Jr., J.P., Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeals (1) from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered August 19, 2015, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree, and (2) from an order of said court (Sober, J.), entered February 27, 2019, which denied defendant's motion to settle the record.

In a September 2014 indictment, defendant was charged with robbery in the first degree, robbery in the second degree, criminal possession of a weapon in the third degree, menacing in the second degree and harassment in the second degree. In full satisfaction thereof, defendant pleaded guilty to a reduced charge of attempted robbery in the first degree and waived his right to appeal, both orally and in writing. Consistent with the terms of the plea agreement, County Court (Ceresia, J.) imposed upon defendant, as a second felony offender, a prison sentence of eight years, to be followed by five years of postrelease supervision. Defendant's subsequent motion to settle the record was denied by County Court (Sober, J.) in a February 2019 decision and order, prompting these appeals.

Initially, with regard to County Court's denial of defendant's motion to settle the record, the People did not oppose many of

136 N.Y.S.3d 494

defendant's proposed amendments concerning an unrelated incident (see People v. La Motte, 276 A.D.2d 931, 932, 714 N.Y.S.2d 562 [2000] ). Defendant, however, has failed to demonstrate that the requested videotape ever existed and that the remaining proposed amendments were ever considered by, or part of the record before, County Court (Ceresia, J.). Under these circumstances, we find no abuse of discretion in the denial of defendant's motion to settle the record (see 22 NYCRR former 800.7; People v. La Motte, 276 A.D.2d at 932–933, 714 N.Y.S.2d 562 ; People v. Hummer, 217 A.D.2d 713, 714, 629 N.Y.S.2d 119 [1995], lv denied 86 N.Y.2d 843, 634 N.Y.S.2d 452, 658 N.E.2d 230 [1995] ; see also 22 NYCRR 850.7 [b][2][iii]; 1250.7).

Contrary to his contention, defendant validly waived his right to appeal. The record reflects that defendant was advised at the outset of the plea proceeding that the waiver of his right to appeal was a condition of the plea agreement, and defendant indicated his understanding of this condition and that he had no questions (see People v. Cannelli, 173 A.D.3d 1567, 1567–1568, 101 N.Y.S.3d 668 [2019] ; People v. Vanalst, 171 A.D.3d 1349, 1350, 96 N.Y.S.3d 767 [2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 659, 130 N.E.3d 1269 [2019] ; People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018] ). During...