People v. Good

• Citation: 920 N.Y.S.2d 464,83 A.D.3d 1124,2011 N.Y. Slip Op. 02751
• Parties: The PEOPLE of the State of New York, Respondent,v.Moses A. GOOD, Appellant.
• Decision Date: 07 April 2011
• Court: New York Supreme Court Appellate Division

83 A.D.3d 1124
920 N.Y.S.2d 464
2011 N.Y. Slip Op. 02751

The PEOPLE of the State of New York, Respondent,
v.
Moses A. GOOD, Appellant.

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

April 7, 2011.

[920 N.Y.S.2d 465]

Danielle Neroni Reilly, Albany, for appellant.Christopher I. Simser, Special Prosecutor, Cortland, for respondent.Before: PETERS, J.P., SPAIN, ROSE, STEIN and EGAN JR., JJ.SPAIN, J.

[83 A.D.3d 1124] Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered December 18, 2009, convicting defendant

[920 N.Y.S.2d 466]

upon his plea of guilty of the crime of sexual abuse in the first degree.

In November 2006, defendant was charged with sexual abuse in the first degree and third degree and endangering the welfare of a child based upon allegations that he subjected a 15–year–old girl to forcible sexual contact. On defendant's previous appeal, we reversed the judgment of conviction entered upon his plea to sexual abuse in the first degree due to a violation of his right to counsel (62 A.D.3d 1041, 877 N.Y.S.2d 766 [2009] ). The plea was vacated and, upon remittal, defendant again pleaded guilty to that top count of the indictment and purportedly signed a written waiver of appeal. Sentenced to the agreed-upon prison term [83 A.D.3d 1125] of three years, followed by five years of postrelease supervision, defendant now appeals, and we affirm.

Initially, we agree that defendant, who counsel reported is illiterate, did not effectively waive his right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). The record contains a totally deficient “WAIVER OF APPEAL” document bearing what appears to be defendant's signature. Moreover, the plea colloquy does not reflect that County Court made up for the shortcomings of the document by explaining to defendant the nature of his right to appeal, or that defendant discussed giving up his right to appeal with counsel or otherwise understood its meaning or consequences, and the cursory document contains no such acknowledgments or information ( see People v. Mosher, 45 A.D.3d 970, 970, 845 N.Y.S.2d 174 [2007], lv. denied 10 N.Y.3d 814, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008]; cf. People v. McCaskill, 76 A.D.3d 751, 752, 905 N.Y.S.2d 721 [2010] ).

We next conclude that defendant's challenge to the voluntary, knowing and intelligent nature of his guilty plea was not preserved for our review as he did not move to withdraw his plea or to vacate the judgment of conviction ( see People v. Cerone, 75 A.D.3d 835, 835–836, 906 N.Y.S.2d 154 [2010]...