People v. Guerrero

• Decision Date: 20 May 2021
• Docket Number: 110405
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin GUERRERO, Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1258
147 N.Y.S.3d 264

The PEOPLE of the State of New York, Respondent,
v.
Kevin GUERRERO, Appellant.

110405

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

Calendar Date: April 20, 2021
Decided and Entered: May 20, 2021

147 N.Y.S.3d 265

David E. Woodin, Catskill, for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered June 14, 2017, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and sexual abuse in the first degree.

147 N.Y.S.3d 266

Defendant was charged by superseding indictment with burglary in the second degree (three counts), attempted burglary in the second degree, burglary in the third degree and sexual abuse in the first degree. As relevant here, the charges stemmed from defendant entering the residence of a college student and subjecting her to sexual contact while she was asleep. In full satisfaction of that indictment, defendant was offered the opportunity to plead guilty to one count of burglary in the second degree and one count of sexual abuse in the first degree with the understanding that he would be sentenced to a prison term of 15 years upon his conviction of burglary in the second degree (followed by five years of postrelease supervision) and to a prison term of seven years upon his conviction of sexual abuse in the first degree (followed by 10 years of postrelease supervision) – said sentences to run concurrently. Defendant also was required to waive his right to appeal. After being afforded additional time to consider the offer, defendant pleaded guilty in conformity with the plea agreement and, after defendant expressly declined the opportunity to withdraw his plea, the contemplated prison terms were imposed. This appeal ensued.

Defendant initially challenges the validity of his waiver of the right to appeal – alternatively contending that County Court exceeded its authority in requiring the waiver in the first instance and, in any event, that the ensuing colloquy was insufficient to establish that defendant knowingly, intelligently and voluntarily waived his right to appeal. Neither of these arguments has merit.

Unlike the situation presented in People v. Sutton, 184 A.D.3d 236, 125 N.Y.S.3d 739 (2d Dept. 2020), lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 385, 152 N.E.3d 1186 (2020), County Court did not fashion its own plea agreement over the objection of the People, and the record does not otherwise support the finding that this was one of those rare instances where the court stepped out of its role "to safeguard the integrity of the appeal waiver process" by itself insisting upon the waiver of the right to appeal ( id. at 243 ; compare People v. Chuan Mu Fu, 186 A.D.3d 620, 621, 126 N.Y.S.3d 675 [2020], lv denied 36 N.Y.3d 1096, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Mar. 17, 2021] ). Additionally, "although the appeal waiver was not mentioned when the terms of the plea agreement were initially placed on the record, defendant was informed during the plea colloquy, and prior to pleading guilty, that a waiver of the right to appeal was part of the plea bargain" ( People v. Gilbert, 145 A.D.3d 1196, 1196, 43 N.Y.S.3d 556 [2016] [internal quotation marks, brackets and citation omitted], lvs denied 28 NY3d 1184, 1187, 52 N.Y.S.3d 711, 714, 75 N.E.3d 103, 106 [2017]; accord People v. Sahler, 168 A.D.3d 1313, 1314, 92 N.Y.S.3d 484 [2019] ; see People v. Inman, 177 A.D.3d 1167, 1167, 115 N.Y.S.3d 148 [2019] ), and the record as a whole otherwise reflects the beneficial nature of the bargain extended to defendant (see People v. Dilworth, 189 A.D.3d 636, 637, 137 N.Y.S.3d 43 [2020], lv denied 36 N.Y.3d 1096, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Mar. 18, 2021] ) – further distinguishing the instant appeal from Sutton and its Second Department progeny (compare People v. Adyl K., 187 A.D.3d 1208, 131 N.Y.S.3d 642 [2020], lv denied 36 N.Y.3d 969, 138 N.Y.S.3d 472, 162 N.E.3d 701 [2020] ; People v. Esposito, 187 A.D.3d 781, 130 N.Y.S.3d 331 [2020], lv denied 36 N.Y.3d 972, 138 N.Y.S.3d 470, 162 N.E.3d 699 [2020] ; People v. Eduardo S., 186 A.D.3d 1265, 129 N.Y.S.3d 483 [2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 340, 159 N.E.3d 1107 [2020] ). Accordingly, we decline to set aside the waiver upon this ground.

147 N.Y.S.3d 267

Nor are we persuaded that the waiver of appeal was otherwise invalid. County Court explained the separate and distinct nature of the right to appeal and distinguished it from the trial-related rights that defendant would be forfeiting by pleading guilty, and defendant, in turn, indicated his understanding and acceptance thereof (see People v. Bonner, 182 A.D.3d 867, 867, 120 N.Y.S.3d 862 [2020] ; People v. Salmon, 179 A.D.3d 1404, 1404, 117 N.Y.S.3d 764 [2020] ). Additionally, defendant executed a detailed written waiver in open court, confirmed that he had...