People v. Buck

• Decision Date: 11 February 2016
• Citation: 25 N.Y.S.3d 402,136 A.D.3d 1117
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael R. BUCK, Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1117

25 N.Y.S.3d 402

The PEOPLE of the State of New York, Respondent,

v.Michael R. BUCK, Appellant.

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

Feb. 11, 2016.

Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.

John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.

Before: PETERS, P.J., GARRY, EGAN JR., ROSE and CLARK, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered August 9, 2014, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

Defendant was charged in a four-count indictment with murder in the second degree and other crimes. The charges followed an incident on September 21, 2013 in which defendant held his father hostage in the father's bedroom and eventually shot his father multiple times in the head and body, causing his death. Pursuant to a negotiated agreement that included a waiver of appeal, defendant pleaded guilty to manslaughter in the first degree in satisfaction of all charges. Defendant was thereafter sentenced, consistent with the terms of the plea agreement, to a prison term of 20 years, followed by five years of postrelease supervision. Defendant now appeals.¹

We affirm. Defendant argues that the plea allocution was deficient and that his plea should be vacated as involuntary due to County Court's failure to inquire as to potential intoxication or justification defenses. While defendant's challenge to the voluntariness of his guilty plea survives any appeal waiver, these claims are unpreserved for our review as the record fails to disclose that defendant made an appropriate postallocution motion to withdraw his guilty plea (see CPL 220.60[3] ; People v. DeCenzo, 132 A.D.3d 1160, 1161, 18 N.Y.S.3d 760 [2015] ; People v. Hudson, 130 A.D.3d 1320, 1320, 14 N.Y.S.3d 231 [2015] ; see also People v. Davis, 24 N.Y.3d 1012, 1013, 997 N.Y.S.2d 115, 21 N.E.3d 568 [2014] ). Indeed, at sentencing, defendant expressly indicated that he did not wish to withdraw his guilty plea. Moreover, the narrow exception to the preservation requirement was not implicated here, as defendant admitted that he intentionally aimed a gun at his father and shot him, intending to cause serious physical injury, and made no statements that were inconsistent with his guilt, negated an essential element of that crime or called into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 667–668, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Hare, 110 A.D.3d 1117, 1117, 972 N.Y.S.2d 361 [2013] ; see also People v. Tyrell, 22 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ). In that regard, defendant did not at any point during the plea allocution claim or suggest that he was intoxicated or had acted in self-defense at the time of the shooting and, in recognition of the fact that he was the initial aggressor, he expressly waived any claim of self-defense.² Were these claims preserved, we would find that defendant's guilty plea was knowing, voluntary and intelligent (see People v. Haffiz, 19 N.Y.3d 883, 884–885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ).

Defendant further challenges the sentence as harsh and excessive. While a waiver of appeal was recited as a term of the plea agreement, we agree with defendant that his appeal waiver was not knowing, voluntary and intelligent, as County Court failed to explain the nature of the right being waived or ascertain that he had discussed it with counsel and further failed to adequately convey "that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilt" (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). While the record on appeal contains a written waiver of appeal dated subsequent to sentencing, there was no reference to it on the record and, consequently, no "attempt by the court to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents" (People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ; accord People v. Mones, 130 A.D.3d 1244, 1245, 13 N.Y.S.3d 686 [2015] ). While defendant's challenge to the severity of the sentence is, therefore, not precluded (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), we are not persuaded that a reduction of the sentence in the interest of justice is warranted (see CPL 470.15[6][b] ). Defendant engaged in protracted...