People v. Hutter

• Decision Date: 11 October 2017
• Docket Number: 2014-08591, Ind. No. 2661-13.
• Citation: 63 N.Y.S.3d 391,154 A.D.3d 776
• Parties: The PEOPLE, etc., respondent, v. Steven W. HUTTER, appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 776
63 N.Y.S.3d 391

The PEOPLE, etc., respondent,
v.
Steven W. HUTTER, appellant.

2014-08591, Ind. No. 2661-13.

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

Oct. 11, 2017.

63 N.Y.S.3d 392

Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant, and appellant pro se.

Thomas J. Spota, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Collins, J.), rendered August 20, 2014, convicting him of burglary in the first degree (two counts), burglary in the second degree (three counts), assault in the second degree (two counts), criminal mischief in the third degree, criminal mischief in the fourth degree, unlawful imprisonment in the second degree, and petit larceny, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge to the factual sufficiency of his plea allocution (see People v. Thompson, 143 A.D.3d 1007, 39 N.Y.S.3d 800 ; People v. Pinero, 138 A.D.3d 763, 764, 27 N.Y.S.3d 883 ; People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220 ).

The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ). However, the defendant failed to preserve this contention for appellate review, since he did not move to vacate his plea or otherwise raise this issue before the County Court (see

63 N.Y.S.3d 393

People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, ...