People v. Fate

• Decision Date: 29 May 2014
• Citation: 117 A.D.3d 1327,2014 N.Y. Slip Op. 03880,986 N.Y.S.2d 672
• Parties: The PEOPLE of the State of New York, Respondent, v. Jamil FATE, Appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1327

986 N.Y.S.2d 672

2014 N.Y. Slip Op. 03880

The PEOPLE of the State of New York, Respondent,

v.Jamil FATE, Appellant.

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

May 29, 2014.

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

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, GARRY and ROSE, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 27, 2012, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to a reduced count of attempted burglary in the second degree and waived his right to appeal. The charges stemmed from a home invasion on December 14, 2011 in which personal property was stolen and sold at a nearby pawn shop. Upon his conviction, County Court sentenced defendant, in accord with the plea agreement, to four years in prison with three years of postrelease supervision. Defendant appeals.

Contrary to defendant's contentions, we find that his guilty plea and appeal waiver were, in all respects, voluntary, knowing and intelligent ( see People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2013];People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993];People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). While defendant's challenge to the voluntariness of his guilty plea survives the appeal waiver ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), the record on appeal fails to reflect that it was preserved by an appropriate postallocution motion ( see People v. Watson, 115 A.D.3d 1016, 1017, 981 N.Y.S.2d 627 [2014] ), and nothing in the plea colloquy “casts significant doubt upon ... defendant's guilt or otherwise calls into question the voluntariness of the plea” so as to implicate the narrow exception to the preservation requirement ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];see People v. Wilson, 101 A.D.3d 1248, 1249, 956 N.Y.S.2d 260 [2012] ). In any event, defendant's claims that he was rushed or pressured into entering a guilty plea are belied by the record, which reflects that County Court thoroughly reviewed the specific terms and consequences of the plea agreement and the trial-related rights he would be forgoing, ascertained defendant's understanding thereof, permitted breaks for him to confer with counsel, and elicited that he had not been pressured or promised anything, and had been afforded sufficient time to discuss his case and the plea agreement with counsel and others, including his mother, who was present in the courtroom. Moreover, the court separately explained the right to appeal and distinguished it from the other rights that defendant was forgoing as a consequence of his plea, and defendant confirmed that he understood the appeal waiver and executed a written waiver of appeal in open court and orally agreed to waive his appeal rights ( see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011];People v. Lopez, 6 N.Y.3d at 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145). To the extent that defendant raises arguments regarding what counsel advised him or investigated, they are not supported by the record before us but, rather, concern matters outside the record and, as such, should be raised in a CPL article 440 motion to vacate the judgment of conviction ( see People v. Haffiz, 19 N.Y.3d 883, 885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012];People v. Morey, 110 A.D.3d 1378, 1379–1380, 975 N.Y.S.2d 201 [2013] ).

Further, since County Court adhered to its sentencing commitment, defendant's challenge to the agreed-upon sentence as harsh and excessive is precluded by his valid appeal waiver ( see People v....