People v. Kaye

• Decision Date: 13 January 2021
• Docket Number: 2019–03651,Ind.No. 79/18
• Citation: 190 A.D.3d 767,135 N.Y.S.3d 854 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Christopher KAYE, appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 767

135 N.Y.S.3d 854 (Mem)

The PEOPLE, etc., respondent,

v.Christopher KAYE, appellant.

2019–03651

Ind.No. 79/18

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

Submitted—December 15, 2020

January 13, 2021

Kelley M. Enderley, Poughkeepsie, NY, for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered March 7, 2019, convicting him of bribing a witness, aggravated family offense (12 counts), and criminal contempt in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's purported waiver of his right to appeal was invalid because the County Court's oral colloquy mischaracterized the appellate rights waived as encompassing a bar to filing an appellate brief and the loss of attendant rights to counsel and poor person relief (see People v. Thomas, 34 N.Y.3d 545, 560–564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Sealey, 187 A.D.3d 1067, 131 N.Y.S.3d 179 ; People v. Walder, 186 A.D.3d 1272, 1272, 127 N.Y.S.3d 894 ). Although the People cite to a written waiver that apparently was signed by the defendant, the court "failed to confirm that [the defendant] understood the contents of the written waiver[ ]" ( People v. Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Christopher B., 184 A.D.3d 657, 659, 125 N.Y.S.3d 149 ; People v. Slade, 180 A.D.3d 1073, 1075, 118 N.Y.S.3d 199 ).

Nevertheless, even though the purported appeal waiver is not valid, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review, as he did not move to vacate his plea or otherwise raise the issue before the County Court (see CPL 470.05[2] ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Negriel, 181 A.D.3d 724, 725, 117 N.Y.S.3d 878 ). Contrary to the defendant's contention, the exception to the preservation requirement does not apply to this case because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Negriel, 181 A.D.3d at 725, 117 N.Y.S.3d 878 ). Further, this was not one of the "rare cases where the defendant lacks a reasonable opportunity to object to a fundamental defect in the plea which is clear on the face of the record and to which ‘the court's attention should have been instantly drawn,’ such that ‘the salutary purpose of the preservation rule is ... not jeopardized’ " ( People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528, quoting People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).

In any event, "an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime" ( People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ; see People v. Lopez, 71 N.Y.2d at 666 n. 2, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). "A plea allocution is sufficient if it shows that the defendant understood the charges and made an intelligent decision to enter a plea" ( People v. Negriel, 181 A.D.3d at 725, 117 N.Y.S.3d 878 [internal quotation marks omitted] ). The record here shows that the defendant understood the charges and...