People v. Hernandez

• Decision Date: 16 October 2013
• Citation: 110 A.D.3d 919,972 N.Y.S.2d 697,2013 N.Y. Slip Op. 06708
• Parties: The PEOPLE, etc., respondent, v. Lizbeth HERNANDEZ, appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 919
972 N.Y.S.2d 697
2013 N.Y. Slip Op. 06708

The PEOPLE, etc., respondent,
v.
Lizbeth HERNANDEZ, appellant.

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

Oct. 16, 2013.

[972 N.Y.S.2d 698]

Marianne Karas, Thornwood, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered March 28, 2012, convicting her of burglary in the second degree, upon her plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's valid waiver of her right to appeal precludes review of her challenge to the factual sufficiency of the plea allocution ( see People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220;People v. Crews, 92 A.D.3d 795, 938 N.Y.S.2d 475;People v. Hardee, 84 A.D.3d 835, 922 N.Y.S.2d 785).

The defendant's contention that her plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved

[972 N.Y.S.2d 699]

for appellate review, since she did not move to withdraw her plea on this ground prior to the imposition of sentence ( see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668;People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220;People v. Andrea, 98 A.D.3d 627, 949 N.Y.S.2d 654). Furthermore, the “rare case” exception to the preservation rule does not apply here, since the defendant's plea allocution did not cast significant doubt upon her guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). Moreover, the defendant's postplea statements regarding the commission of the crime made to her probation officer that appear in the presentence investigation report were insufficient to warrant withdrawal of her plea ( see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329;People v. Crawford, 106 A.D.3d 832, 833, 964 N.Y.S.2d 636,lv. denied21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392;People v. Soria, 99 A.D.3d 1027, 952 N.Y.S.2d 300;People v. Gibson, 95 A.D.3d 1033, 1033–1034, 944 N.Y.S.2d 237;People v. Dazzo, 92 A.D.3d 796, 938 N.Y.S.2d 446).

The defendant's valid waiver of her right to appeal precludes appellate review of her claim that she was...