People v. Istvan, 2017–01085
| Decision Date | 13 February 2020 |
| Docket Number | 2017–01085,Ind. No. 13/16 |
| Citation | 117 N.Y.S.3d 694,180 A.D.3d 804 |
| Parties | The PEOPLE, etc., Respondent, v. Steven ISTVAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Yasmin Daley Duncan, Brooklyn, NY, for appellant, and appellant pro se.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Craig Stephen Brown, J.), rendered December 16, 2016, convicting him of assault in the first degree and aggravated criminal contempt, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant validly 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 precludes appellate review of his contention, raised in his pro se supplemental brief, that the sentence imposed was excessive (see People v Lopez , 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Contrary to the People's contention, the defendant's valid waiver of his right to appeal does not preclude appellate review of his challenge to the voluntariness of his plea (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ). During the plea allocution, the defendant made certain comments on the record that called into question the voluntariness of the plea (cf. People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). At that point, the County Court indicated that it would not accept the defendant's plea of guilty based on the allocution that had occurred. The court then fulfilled its duty to inquire further to ascertain that the defendant's plea of guilty was knowing and voluntary. It also afforded the defendant additional time to consult with counsel. Following the court's additional inquiry, the defendant did not thereafter equivocate or raise further objection, and he did not seek to withdraw the plea. Accordingly, his contention that the plea was not knowing and voluntary is unpreserved for appellate review (see People v. Williams, 27 N.Y.3d 212, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Lopez, 71 N.Y.2d at 667–668, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Diaz, 164 A.D.3d 519, 520, 77 N.Y.S.3d 883 ; People v. Squitieri, 157 A.D.3d 911, 911, 67 N.Y.S.3d 479 ; People v. Amay, 156 A.D.3d 895, 896, 65 N.Y.S.3d 804 ). In any event, the court's colloquy...
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...divorced from the context in which they were made, the defendant immediately thereafter continued to equivocate (cf. People v. Istvan, 180 A.D.3d 804, 805, 117 N.Y.S.3d 694 ). When asked if, following the brief discussion in court with defense counsel, the defendant had an opportunity "to d......
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...that the plea was knowing, voluntary, and intelligent" ( People v. Massey, 186 A.D.3d at 1717, 129 N.Y.S.3d 818 ; People v. Istvan, 180 A.D.3d 804, 805, 117 N.Y.S.3d 694 ; see People v. Rodriguez, 152 A.D.3d 800, 800, 60 N.Y.S.3d 191 ). Contrary to the defendant's contention, "the defendant......
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...waiver of his right to appeal does not preclude appellate review of his challenge to the voluntariness of the plea (see People v. Istvan, 180 A.D.3d 804, 117 N.Y.S.3d 694 ), or his contention that the Supreme Court improperly imposed an enhanced sentence (see People v. Gregory, 140 A.D.3d 1......
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