People v. Devault

• Decision Date: 29 January 2015
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin DEVAULT, Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1140

1 N.Y.S.3d 579

The PEOPLE of the State of New York, Respondent,

v.Kevin DEVAULT, Appellant.

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

Jan. 29, 2015.

Gail B. Rubenfeld, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and CLARK, JJ.

LYNCH, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 22, 2012, convicting defendant upon his plea of guilty of the crimes of course of sexual conduct in the first degree, course of sexual conduct in the second degree, rape in the second degree and incest in the second degree.

In satisfaction of a 17–count indictment, defendant pleaded guilty to course of sexual conduct in the first degree, course of sexual conduct in the second degree, rape in the second degree and incest in the second degree. Defendant also executed a written waiver of his right to appeal. Following the denial of defendant's motion to vacate the plea, County Court sentenced him to an aggregate term of 25 years in prison, to be followed by 20 years of postrelease supervision. Defendant now appeals.

We affirm. Initially, we reject defendant's argument that his waiver of the right to appeal is invalid. Any ambiguity in County Court's discussion of the waiver was resolved by the written waiver and defendant's oral confirmation that he both had signed the written waiver in the presence of counsel and was waiving his right to appeal voluntarily (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ; People v. Fling, 112 A.D.3d 1001, 1002, 975 N.Y.S.2d 923 [2013], lv. denied 23 N.Y.3d 1020, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ; see also People v. Bradshaw, 18 N.Y.3d 257, 266–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). Defendant's sole remaining challenge on this appeal is that his plea must be deemed involuntary inasmuch as his recitation of the facts did not establish the elements of the crimes to which he pleaded guilty. This argument amounts to a challenge to the facial sufficiency of his plea and is barred by defendant's valid waiver of the right to appeal and his failure to preserve the issue by raising it in his motion to withdraw his plea (see People v. Long, 117 A.D.3d 1326, 1326–1327, 986 N.Y.S.2d 670 [2014], lv. denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014] ; People v. Mydosh, 117 A.D.3d 1195, 1196, 984 N.Y.S.2d 687 [2014], lv. denied 24 N.Y.3d 963, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014] ). Moreover, this is not the "rare case" that comes "within the narrow exception to the preservation requirement" inasmuch as defendant's factual recitation did not actually negate an...