People v. Case

• Decision Date: 19 May 2016
• Docket Number: 106341.
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicole L. CASE, Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1239
31 N.Y.S.3d 663
2016 N.Y. Slip Op. 03906

The PEOPLE of the State of New York, Respondent,
v.
Nicole L. CASE, Appellant.

106341.

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

May 19, 2016.

31 N.Y.S.3d 663

Erin C. Morigerato, Albany, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

31 N.Y.S.3d 664

Before: LAHTINEN, J.P., McCARTHY, DEVINE, CLARK and MULVEY, JJ.

MULVEY, J.

139 A.D.3d 1239

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered August 20, 2013 in Albany County, convicting defendant upon her plea of guilty of the crime of burglary in the second degree.

Defendant pleaded guilty to burglary in the second degree pursuant to a plea agreement that satisfied a five-count indictment and capped her prison sentence at nine years to be followed by four years of postrelease supervision. The charges stemmed from defendant's involvement with others in a violent home invasion in which items of personal property were stolen. Consistent with the agreement, Supreme Court imposed a prison term of eight years with four years of postrelease supervision. Defendant now appeals.

We affirm. Initially, defendant argues that she did not knowingly waive her right to appeal. The record discloses that an appeal waiver was recited as a term of the agreement, and Supreme Court explained during the plea allocution that it was separate and distinct from the trial rights forfeited by the guilty plea, and ascertained that defendant understood and willingly waived her appellate rights. Defendant, who conferred with counsel during the oral appeal waiver, also signed a written appeal waiver in court after indicating that she had discussed it “fully” with counsel and understood it. Accordingly, we find that the appeal waiver was knowing, voluntary and intelligent (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ;

139 A.D.3d 1240

People v. Jackson, 129 A.D.3d 1342, 1342, 10 N.Y.S.3d 368 [2015] ; People v. Toback, 125 A.D.3d 1060, 1061, 3 N.Y.S.3d 444 [2015], lv. denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ), precluding her challenges to the sentence as harsh and excessive and to the adequacy of the plea allocution (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Atkinson, 124 A.D.3d 1149, 1150, 2 N.Y.S.3d 687 [2015], lv. denied 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 [2015] ; People v. Rapp, 133 A.D.3d 979, 979, 20 N.Y.S.3d 663 [2015] ).

While defendant's challenge to her guilty plea as involuntary survives her appeal waiver, it was not preserved by an appropriate postallocution motion to withdraw her guilty plea (see CPL 220.60[3] ; People v. O'Keefe, 133 A.D.3d 1034, 1035, 19 N.Y.S.3d 196 [2015], lv. denied 26 N.Y.3d 1148, 32 N.Y.S.3d 62, 51 N.E.3d 573 [2016] ), and she made no statements during the allocution that negated an essential element of the crime or cast doubt on her guilt so as to trigger the narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Burritt, 127 A.D.3d 1433, 1434, 6 N.Y.S.3d 806 [2015] ). Contrary to her claims on appeal that she had wanted to withdraw her guilty plea, the record reflects that after she made statements at sentencing minimizing her involvement and suggesting that she wanted to cooperate against her accomplices, she was afforded an adjournment to permit her to move to withdraw her plea and thereafter expressly declined to so move (see People v. Martin, 125 A.D.3d 1054, 1054, 3 N.Y.S.3d 187 [2015], lv. denied 26 N.Y.3d 932, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015] ). In any event, her unequivocal responses to Supreme Court's detailed questions were sufficient to establish her guilt and the record establishes that her plea was knowing, voluntary and intelligent (see

31 N.Y.S.3d 665

People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ; People v. Rouse, 119 A.D.3d 1161, 1163, 989 N.Y.S.2d 395 [2014] ).

Also lacking in merit is...