People v. Dubois

• Decision Date: 25 May 2017
• Citation: 150 A.D.3d 1562,55 N.Y.S.3d 513
• Parties: The PEOPLE of the State of New York, Respondent, v. Alvin W. DUBOIS Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1562
55 N.Y.S.3d 513

The PEOPLE of the State of New York, Respondent,
v.
Alvin W. DUBOIS Jr., Appellant.

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

May 25, 2017.

55 N.Y.S.3d 514

Brian M. Quinn, Albany, for appellant.

Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH, CLARK and AARONS, JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Saratoga County (Sypniewski, J.), rendered August 24, 2015, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree and burglary in the second degree.

In November 2014, defendant was charged in an eight-count indictment, as amplified by a bill of particulars, with burglary in the first degree and other violent crimes stemming from his invasion of an apartment in the middle of the night, during which he assaulted the female occupant. In June 2015, defendant was charged in a superior court information with burglary in the second degree related to another home invasion. Pursuant to a joint plea agreement resolving all charges, defendant pleaded guilty to burglary in the first degree under count 2 of the indictment, and also waived indictment and pleaded guilty to burglary in the second degree as charged in the superior court information. The plea agreement required that defendant waive his right to appeal, and he admitted his status as a second felony offender. Consistent with the agreement, County Court imposed a prison sentence of 25 years with five years of postrelease supervision on the first degree burglary conviction and a five-year prison sentence with five years of postrelease supervision on the second degree burglary conviction, the sentences to be served consecutively. Defendant appeals.

55 N.Y.S.3d 515

We affirm. Initially, contrary to defendant's claim, the plea colloquy and the signed waivers demonstrate that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Peterson, 147 A.D.3d 1148, 1149, 46 N.Y.S.3d 436 [2017] ). More specifically, the record reflects that, as to each conviction, an appeal waiver was recited as a condition of the plea agreement, County Court explained its meaning and made clear its separate and distinct nature and defendant indicated that he understood and accepted this condition. Defendant then signed separate written appeal waivers in open court after conferring with counsel and assuring the court that he understood them (see People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [2016] ), which he reaffirmed at sentencing. Given the valid appeal waivers, defendant is precluded from challenging the agreed-upon sentence as harsh and excessive (see People v. Peterson, 147 A.D.3d at 1149, 46 N.Y.S.3d 436 ).

Defendant's challenge to his guilty plea survives his waivers of appeal but was not preserved by an appropriate postallocution motion despite a reasonable opportunity to do so (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Peterson, 147 A.D.3d at 1149, 46 N.Y.S.3d 436 ). Further, defendant made no statements during the plea allocution that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Lewis, 143 A.D.3d at 1185, 40 N.Y.S.3d 605 ). Were we to address this claim, we would find that, contrary to defendant's argument, County Court advised him during the plea allocution that he would be waiving, among other rights, his right to present defenses, which he indicated he understood, and he acknowledged that he was pleading guilty because he was, in fact, guilty, thereby establishing the knowing, voluntary and intelligent nature of his plea (see People v. Haffiz, 19 N.Y.3d 883, 884, ...