People v. Judd

Citation2013 N.Y. Slip Op. 07626,975 N.Y.S.2d 312,111 A.D.3d 1421
PartiesThe PEOPLE of the State of New York, Respondent, v. Michael J. JUDD, Jr., Defendant–Appellant.
Decision Date15 November 2013
CourtNew York Supreme Court — Appellate Division

111 A.D.3d 1421
975 N.Y.S.2d 312
2013 N.Y. Slip Op. 07626

The PEOPLE of the State of New York, Respondent,
v.
Michael J. JUDD, Jr., Defendant–Appellant.

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

Nov. 15, 2013.


[975 N.Y.S.2d 313]


D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.

Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.


PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, and WHALEN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ). Initially, we agree with defendant that his waiver of the right to appeal is invalid inasmuch as “ ‘the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Jones, 107 A.D.3d 1589, 1589, 966 N.Y.S.2d 724, lv. denied21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149; see People v. Amir W., 107 A.D.3d 1639, 1640, 969 N.Y.S.2d 289).

By pleading guilty, defendant waived his contention that he was improperly arraigned on the special information based on the court's error in stating that he would be pleading guilty to attempted burglary in the third degree. A “ ‘guilty plea ... results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings' ” (People v. Leary, 70 A.D.3d 1394, 1395, 894 N.Y.S.2d 682, lv. denied14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012, quoting People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838; see People v. Releford, 73 A.D.3d 1437, 1438, 901 N.Y.S.2d 447, lv. denied15 N.Y.3d 808, 908 N.Y.S.2d 168, 934 N.E.2d 902), which include any defect in the arraignment procedure ( see People v. Williams, 25 Misc.3d 15, 18, 887 N.Y.S.2d 749; see generally

[975 N.Y.S.2d 314]

People v. Roberts, 6 A.D.3d 942, 943, 775 N.Y.S.2d 424, lv. denied3 N.Y.3d 662, 782 N.Y.S.2d 704, 816 N.E.2d 577).

Although the waiver of the right to appeal was invalid and thus does not bar defendant's challenge to the guilty plea, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea colloquy ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Spears, 106 A.D.3d 1534, 1535, 964 N.Y.S.2d 452). Contrary to defendant's further contention, this case does not fall within the rare exception to the preservation requirement set forth in Lopez because nothing in the plea allocution calls into question the voluntariness of the plea or casts “significant doubt” upon his guilt (id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; see People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623).

With respect to defendant's further contention that he was denied effective assistance of counsel, such a claim survives a plea of guilty only if “the plea bargaining process was infected by [the] allegedly ineffective assistance or [if] defendant entered the plea because of his attorney['s] allegedly poor performance” (People v. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814, lv. denied9 N.Y.3d 869, 840 N.Y.S.2d...

To continue reading

Request your trial
14 cases
  • People v. Morman
    • United States
    • New York Supreme Court — Appellate Division
    • 23 Diciembre 2016
    ...failed to comply with the procedural requirements of CPL 400.21 when he was sentenced as a second felony offender (see People v. Judd, 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312, lv. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 ; see generally People v. Pellegrino, 60 N.Y.2d 636, 637......
  • People v. Rohadfox
    • United States
    • New York Supreme Court — Appellate Division
    • 27 Septiembre 2019
    ...sentencing the People failed to file a CPL 400.21 statement indicating that he had a predicate felony offense (see People v. Judd , 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312 [4th Dept. 2013], lv. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014] ; see generally People v. Pellegrin......
  • People v. Plumley
    • United States
    • New York Supreme Court — Appellate Division
    • 15 Noviembre 2013
    ...1007, 695 N.Y.S.2d 753, 717 N.E.2d 1090). Even assuming, arguendo, that the victim remembered the showup identification procedure, [975 N.Y.S.2d 312]we note that the shirt defendant wore during that procedure was a different color than the shirt defendant wore in the picture used in the pho......
  • People v. Dalton
    • United States
    • New York Supreme Court — Appellate Division
    • 28 Septiembre 2018
    ...1146, 1148, 947 N.Y.S.2d 876 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ; see People v. Judd , 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312 [4th Dept. 2013], lv denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014] ). To the extent that such infor......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT