People v. Hernandez

• Decision Date: 30 June 2016
• Citation: 34 N.Y.S.3d 698,2016 N.Y. Slip Op. 05183,140 A.D.3d 1521
• Parties: The PEOPLE of the State of New York, Respondent, v. Elliot HERNANDEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1521

34 N.Y.S.3d 698

2016 N.Y. Slip Op. 05183

The PEOPLE of the State of New York, Respondent,

v.Elliot HERNANDEZ, Appellant.

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

June 30, 2016.

Salvatore Adamo, Albany, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE, MULVEY and AARONS, JJ.

AARONS

, J.

Appeal from a judgment of the County Court of Sullivan County (McGuire, J.), rendered January 30, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (four counts).

In full satisfaction of all charges brought against him, defendant pleaded guilty to burglary in the second degree (four counts) and, pursuant to the terms of the negotiated plea agreement, executed a written waiver of his right to appeal in open court. County Court thereafter sentenced him to concurrent prison terms of seven years, to be followed by five years of postrelease supervision. County Court also imposed certain conditions of defendant's postrelease supervision, including that he avail himself of any vocational opportunities, undergo health and drug and alcohol evaluations and follow any recommendations required for a positive discharge. Defendant now appeals.

Initially, contrary to defendant's contention, his waiver of the right to appeal was valid. The record reflects that County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea, and defendant acknowledged that he signed the written waiver after conferring with counsel regarding its contents. Accordingly, defendant's waiver of the right to appeal was knowing, intelligent and voluntary (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]

; People v. Miller, 137 A.D.3d 1485, 1485, 29 N.Y.S.3d 586 [2016] ). Although defendant's assertion that his guilty plea was not knowing, voluntary or intelligent is not precluded by his waiver of appeal (see

People v. Burritt, 127 A.D.3d 1433, 1434, 6 N.Y.S.3d 806 [2015], lv. denied 27 N.Y.3d 994, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014], lv. denied 27 NY3d 998, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ), his claim is not preserved for our review as defendant failed to make an appropriate postallocution motion (see

People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Buck, 136 A.D.3d 1117, 1118, 25 N.Y.S.3d 402 [2016] ). Nor did defendant's statements during the plea allocution cast doubt upon his guilt or negate an essential element of the crimes as to trigger the narrow exception to the preservation requirement (see

People v. Griffith, 136 A.D.3d 1114, 1114–1115, 25 N.Y.S.3d 400 [2016] ; People v. Brown, 125 A.D.3d 1049, 1049–1050, 2 N.Y.S.3d 699 [2015] ).

As to defendant's claims that he was denied the effective assistance of counsel, they survive his appeal waiver to the extent that they implicate the voluntariness of his guilty plea (see People v. Beverly, 137 A.D.3d 1421, 1422, 27 N.Y.S.3d 724 [2016]

; People v. Brown, 128 A.D.3d 1273, 1273–1274, 9 N.Y.S.3d 735 [2015] ), but defendant did not preserve these claims for our review as there is no indication in the record that defendant made an appropriate postallocution motion (see People v. Broomfield, 128 A.D.3d 1271, 1271–1272, 9 N.Y.S.3d 733 [2015]

, lv. denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015] ; People v. Turner, 126 A.D.3d 1228, 1229, 5 N.Y.S.3d 612 [2015] ; People v. Guyette, 121 A.D.3d at 1432, 995 N.Y.S.2d 395 ). With regard to defendant's claim that defense counsel refused to file a motion to withdraw defendant's guilty plea, this claim is based on matters outside of the record and is more properly the subject of a CPL article 440 motion (see

People v. Guyette, 121 A.D.3d at 1432, 995 N.Y.S.2d 395 ; see also

People v. Griffith, 136 A.D.3d at 1115, 25 N.Y.S.3d 400).

Given defendant's valid appeal waiver, he is foreclosed from challenging both County Court's decision to deny him youthful offender status and the sentence as harsh and excessive (see People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015]

; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Bailey, 137 A.D.3d 1620, 1621, 26 N.Y.S.3d 917 [2016] ; People v. Roberts, 134 A.D.3d 1352, 1352, 21 N.Y.S.3d 649 [2015] ). While defendant's challenge to the $4,000 in fines imposed survives the appeal waiver “because the amount of the fine[s] is not included in the terms of the plea bargain set forth in the record” (People v. Etkin, 284 A.D.2d 579, 580–581, 728 N.Y.S.2d 205 [2001], lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119 [2001] ; see

People v. Ortiz, 104 A.D.3d 1202, 1203, 960 N.Y.S.2d 587 [2013] ), defendant failed to object to the imposition of a fine at sentencing or otherwise preserve his contention for our review (see

People v. Wingo, 103 A.D.3d 1036, 1037, 962 N.Y.S.2d 422 [2013], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; People v. Trimm, 295 A.D.2d 640, 642, 744 N.Y.S.2d 52 [2002], lv. denied 98 N.Y.2d 732, 749 N.Y.S.2d 482, 779 N.E.2d 193 [2002] ; People v. Carrillo, 257 A.D.2d 780, 783, 686 N.Y.S.2d 114 [1999], lv. denied 93 N.Y.2d 967, 695 N.Y.S.2d 53, 716 N.E.2d 1098 [1999]

).

Finally, the People concede, and we agree, that because only the Board of Parole is authorized to impose the conditions of a term of a postrelease supervision (see Penal Law § 70.45[3]

; Executive Law §§ 259–c [2 ]; 259–i[3], [4]; People v. Monk, 21 N.Y.3d 27, 32, 966 N.Y.S.2d 739, 989 N.E.2d 1 [2013] ; People v. Curry, 123 A.D.3d 1381, 1383–1384, 999 N.Y.S.2d 591 [2014], lv. denied 25 N.Y.3d 950, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015] ), County Court erred to the extent that it imposed certain conditions of defendant's postrelease supervision at sentencing, and those conditions must be stricken (see

People v. Curry, 123...