People v. Garcia-Cruz

• Decision Date: 29 April 2016
• Docket Number: 291 KA 13-00828.
• Citation: 30 N.Y.S.3d 427,2016 N.Y. Slip Op. 03302,138 A.D.3d 1414
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose GARCIA–CRUZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1414
30 N.Y.S.3d 427
2016 N.Y. Slip Op. 03302

The PEOPLE of the State of New York, Respondent,
v.
Jose GARCIA–CRUZ, Defendant–Appellant.

291 KA 13-00828.

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

April 29, 2016.

30 N.Y.S.3d 428

D.J. & J.A. Cirando, ESQS., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, and SCUDDER, JJ.

MEMORANDUM:

138 A.D.3d 1414

Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the first degree (Penal Law § 140.30 [3] ). We agree with defendant that the waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Jones, 107 A.D.3d 1589, 1589, 966 N.Y.S.2d 724, lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [internal quotation marks omitted]; see People v. Amir W., 107 A.D.3d 1639, 1640, 969 N.Y.S.2d 289 ), and because “there is no basis upon which to conclude that the court ensured ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (

30 N.Y.S.3d 429

Jones, 107 A.D.3d at 1590, 966 N.Y.S.2d 724, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). We nevertheless reject defendant's challenge to the severity of the sentence.

Defendant contends that he was denied his due process right to an interpreter at some proceedings, requiring reversal of the conviction. Upon our review of the record, we conclude that defendant, who was represented by counsel, failed to preserve his contention for our review because he never objected to the absence of an interpreter (see People v. Robles, 86 N.Y.2d 763, 764–765, 631 N.Y.S.2d 131, 655 N.E.2d 172 ; People v. Rivera, 15 A.D.3d 859, 860, 788 N.Y.S.2d 802, lv. denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 ). In any event, we...