People v. Korber

• Decision Date: 18 November 2011
• Citation: 2011 N.Y. Slip Op. 08430,89 A.D.3d 1543,932 N.Y.S.2d 780
• Parties: The PEOPLE of the State of New York, Respondent,v.Scott KORBER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1543

932 N.Y.S.2d 780

2011 N.Y. Slip Op. 08430

The PEOPLE of the State of New York, Respondent,

v.Scott KORBER, Defendant–Appellant.

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

Nov. 18, 2011.

Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of Counsel), for Respondent.PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [3] ) and rape in the first degree (§ 130.35[1] ). Contrary to defendant's contention, he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). “County 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. James, 71 A.D.3d 1465, 1465, 898 N.Y.S.2d 391 [internal quotation marks omitted] ), and the record establishes that he “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

Defendant's further contention “that his plea was not knowing, intelligent and voluntary ‘because he did not recite the underlying facts of the crime[s] but simply replied to [the c]ourt's questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution,’ which is encompassed by the valid waiver of the right to appeal” ( People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489, lv. denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060; see People v. Brown, 66 A.D.3d 1385, 885 N.Y.S.2d 660, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566). Moreover, defendant failed to preserve that contention for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction ( see People v. Jamison, 71 A.D.3d 1435, 896 N.Y.S.2d 780, lv. denied 14 N.Y.3d 888, 903 N.Y.S.2d 777, 929 N.E.2d 1012; People v. Lacey, 49 A.D.3d 1259, 1259–1260, 852 N.Y.S.2d 895, lv. denied 10 N.Y.3d 936, 862 N.Y.S.2d 342, 892 N.E.2d 408).

Defendant's constitutional challenge to the persistent felony offender statute is unpreserved for our review ( see People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 749 N.E.2d 727; People v. Watkins, 17 A.D.3d 1083, 1084, 793 N.Y.S.2d 657, lv. denied 5 N.Y.3d 771, 801 N.Y.S.2d 265, 834 N.E.2d 1275), and “ ‘there is no indication in the record that the Attorney General was given the requisite notice of that challenge’ ” ( People v. Bastian, 83 A.D.3d 1468, 1469–1470, 919 N.Y.S.2d 724, lv. denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92). In any event, defendant's challenge is without merit ( see People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026, cert. denied ––– U.S. ––––, 132 S.Ct. 123, –––L.Ed.2d –––– [2011]; People v. Rawlins, 10 N.Y.3d 136, 158, 855 N.Y.S.2d 20, 884 N.E.2d 1019, cert. denied sub nom. Meekins v. New York, –––U.S. ––––, 129 S.Ct. 2856, 174 L.Ed.2d 601; Bastian, 83 A.D.3d at 1470, 919 N.Y.S.2d 724). Defendant's contention that the court erred in failing to conduct a hearing before sentencing him as a persistent felony offender is encompassed by his valid waiver of the right to appeal ( see People v. Taylor, 73 A.D.3d 1285, 1286, 900 N.Y.S.2d 784, lv. denied 15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904). Moreover, defendant failed to preserve that contention for our review ...