People v. Easter, 105648

• Decision Date: 20 November 2014
• Docket Number: 105648
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernard EASTER, Appellant.

122 A.D.3d 1073
995 N.Y.S.2d 852
2014 N.Y. Slip Op. 08065

The PEOPLE of the State of New York, Respondent
v.
Bernard EASTER, Appellant.

105648

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

Nov. 20, 2014.

995 N.Y.S.2d 853

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney (Steven Sharp of counsel), for respondent.

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

Opinion

ROSE, J.

122 A.D.3d 1073

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered December 12, 2012 in Albany County, convicting defendant upon his plea of guilty of the crime of course of sexual conduct against a child in the first degree.

Defendant pleaded guilty to the class B felony of course of sexual conduct against a child in the first degree in satisfaction of a multicount indictment charging him with sex crimes against three victims, each under the age of 13. Pursuant to the plea agreement, defendant waived his right to appeal and Supreme Court agreed to impose a prison sentence of 11 years followed by 10 years of postrelease supervision. The court then sentenced him to the agreed-upon term and he now appeals.

Defendant's challenge to the voluntariness of his plea is not preserved for our review because the record does not reflect that he moved to withdraw the plea (see People v. Watson, 110 A.D.3d 1110, 1110, 972 N.Y.S.2d 352 [2013], lvs. denied 22 N.Y.3d 1157, 1160, 984 N.Y.S.2d 641, 644, 7 N.E.3d 1129, 1132 [2014] ; People v. Musser, 106 A.D.3d 1334, 1335, 965 N.Y.S.2d 248 [2013], lv. denied 22 N.Y.3d 997, 981 N.Y.S.2d 3, 3 N.E.3d 1171 [2013] ; People v. Williams, 101 A.D.3d 1174, 1174, 959 N.Y.S.2d 551 [2012] ). Even assuming that defendant's comment-made as he was about to be sworn in prior to entering the plea—that “I can't do this” triggers the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), the record reflects that defendant thereafter consulted with counsel, Supreme

122 A.D.3d 1074

Court thoroughly inquired as to whether he was being coerced and, based on his unequivocal answers, was satisfied that he was freely and voluntarily entering the plea (see People v. Howard, 119 A.D.3d 1090, 1090, 988 N.Y.S.2d 726 [2014], lv. denied 24 N.Y.3d 961 [2014] ; People v. Goodell, 104 A.D.3d 1026, 1026–1027, 960...