People v. Elliot

• Decision Date: 31 March 2016
• Citation: 137 A.D.3d 715,27 N.Y.S.3d 386 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Lawrence ELLIOT, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 715

27 N.Y.S.3d 386 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Lawrence ELLIOT, Defendant–Appellant.

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

March 31, 2016.

Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered July 10, 2013, as amended July 29, 2013, convicting defendant, upon his plea of guilty, of predatory sexual assault, and sentencing him to a term of 13 years to life, unanimously affirmed.

Defendant's contention that his plea was rendered involuntary by the court's allegedly coercive statements about his potential sentence is unpreserved because his remarks at sentencing neither clearly requested to withdraw the plea nor articulated the ground he raises on appeal (see People v. Ali, 96 N.Y.2d 840, 729 N.Y.S.2d 434, 754 N.E.2d 193 [2001]

; People v. Tabares, 52 A.D.3d 437, 860 N.Y.S.2d 114 [1st Dept.2008], lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ), and we decline to review defendant's contention in the interest of justice. As an alternative holding, we find that the court's reference to a probable sentence upon conviction after trial, although ill-advised, did not render the plea involuntary (see People v. Cornelio, 227 A.D.2d 248, 642 N.Y.S.2d 648 [1996], lv. denied 88 N.Y.2d 982, 649 N.Y.S.2d 389, 672 N.E.2d 615 [1996] ; see also Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 [1978] ).

Defendant made a valid waiver of his right to appeal, which forecloses review of his suppression claim (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]

). The court's colloquy adequately described the waiver of his right to appeal and did not "lump[ ] it into the panoply of rights normally forfeited upon a guilty plea" (People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). Moreover, defendant signed a written waiver, which he had discussed with counsel, that adequately supplemented the oral colloquy (see People v. Lewis, 127 A.D.3d 569, 5 N.Y.S.3d 436 [1st Dept.2015], lv. denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015] ). As an alternative holding, we find that defendant's suppression motion was properly denied for all of the reasons stated by the court.

TOM

, J.P., SWEENY, MANZANET–DAN...