People v. Gamble
| Decision Date | 12 May 2021 |
| Docket Number | 2019-14587,Ind. No. 127/19 |
| Citation | 143 N.Y.S.3d 911 (Mem),194 A.D.3d 838 |
| Parties | The PEOPLE, etc., respondent, v. Marquis GAMBLE, appellant. |
| Court | New York Supreme Court — Appellate Division |
Richard L. Herzfeld, New York, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered October 10, 2019, convicting him of criminal sale of a controlled substance in the second degree, attempted operating as a major trafficker, and conspiracy in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowingly, intelligently, and voluntarily entered is unpreserved for appellate review, since he did not move to withdraw the plea or otherwise raise the issue before the County Court (see CPL 470.05[2] ; People v. Coverdale, 189 A.D.3d 1610, 1611, 136 N.Y.S.3d 335 ). In any event, this contention is without merit. Contrary to the defendant's contention, his attorney and the court accurately stated, after he had already expressed his desire to enter a plea of guilty to the charges including criminal sale of a controlled substance in the second degree, that "giving narcotics to another individual constitutes a sale" under the Penal Law (see Penal Law § 220.00[1] ; People v. Herring, 83 N.Y.2d 780, 782, 610 N.Y.S.2d 949, 632 N.E.2d 1272 ; cf. People v. Cruz, 176 A.D.3d 852, 855–856, 110 N.Y.S.3d 148 ).
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid, since the County Court's colloquy mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ). Moreover, the court failed to explain that the appellate rights the defendant was waiving were separate and distinct from the rights automatically forfeited by pleading guilty (see People v. Stinson, 189 A.D.3d 1271, 134 N.Y.S.3d 200 ), or that the right to appeal ordinarily survives a plea of guilty (see People v. Alston, 163 A.D.3d 843, 844, 81 N.Y.S.3d 167 ). The court also failed to ascertain on the record that...
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...order entered upon his or her default is required to demonstrate a reasonable excuse for the default and the existence of a potentially 143 N.Y.S.3d 911 meritorious cause of action or defense" ( Matter of Lorraine D. v. Widmack C., 79 A.D.3d 745, 745, 912 N.Y.S.2d 633 ; see Matter of Brice ......
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...available for certain issues (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Gamble, 194 A.D.3d 838, 838–839, 143 N.Y.S.3d 911 ). Moreover, the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see ......
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...the defendant that appellate review remained available for certain issues (see People v Thomas, 34 N.Y.3d 545, 566; People v Gamble, 194 A.D.3d 838, 838-839). Moreover, the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v Ka......
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...the defendant that appellate review remained available for certain issues (see People v Thomas, 34 N.Y.3d 545, 566; People v Gamble, 194 A.D.3d 838, 838-839). Moreover, the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v Ka......