People v. Larock

Decision Date19 May 2016
Citation31 N.Y.S.3d 665,139 A.D.3d 1241,2016 N.Y. Slip Op. 03907
PartiesThe PEOPLE of the State of New York, Respondent, v. Joshua R. LAROCK, Appellant.
CourtNew York Supreme Court — Appellate Division

139 A.D.3d 1241
31 N.Y.S.3d 665
2016 N.Y. Slip Op. 03907

The PEOPLE of the State of New York, Respondent,
v.
Joshua R. LAROCK, Appellant.

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

May 19, 2016.


31 N.Y.S.3d 666

John A. Cirando, Syracuse, for appellant.

31 N.Y.S.3d 667

Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), for respondent.

Before: LAHTINEN, J.P., ROSE, LYNCH, CLARK and AARONS, JJ.

ROSE, J.

139 A.D.3d 1241

Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered August 8, 2013, convicting defendant upon his plea of guilty of the crimes of burglary in the third degree and criminal contempt in the first degree, and (2) by permission, from an order of said court, entered February 13, 2014, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In September 2011, pursuant to a combined negotiated plea agreement, defendant pleaded guilty to criminal contempt in the first degree in satisfaction of a three-count indictment, admitting that he had violated an order of protection in place to protect the mother of his children (hereinafter the victim). Defendant also waived indictment and pleaded guilty to burglary in the third degree as charged in a superior court information, stemming from his theft from a business. The plea agreement included a waiver of appeal and satisfied other pending charges. It contemplated that if defendant successfully completed a Judicial Diversion Program (hereinafter the program) (see CPL art 216), he would be sentenced to two years of interim probation followed by five years of probation but, if he failed to complete the program, he could face consecutive sentences with a maximum aggregate of 11 years in prison. In May 2013, defendant was charged with violating several terms of the program, as amended, and thereafter waived his right to a hearing, consented to his termination from the program and admitted two of the violations. Defendant did so pursuant to

139 A.D.3d 1242

an agreement whereby he received consecutive prison sentences of 2 to 4 years for the burglary conviction and 3 to 6 years for the contempt conviction, as an admitted second felony offender. An order of protection was issued in favor of the victim and defendant was ordered to pay restitution. Defendant's subsequent motion to vacate the judgment was denied without a hearing. Defendant now appeals from the judgment of conviction and, with permission, from the order denying his motion to vacate.

Initially, we agree with defendant that his waiver of appeal was not knowing, voluntary or intelligent (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). While County Court elicited an oral appeal waiver from defendant, the court failed to inform him that his appeal rights were separate and distinct from those rights automatically forfeited upon his guilty plea (see id. ; People v. Mones, 130 A.D.3d 1244, 1244, 13 N.Y.S.3d 686 [2015] ). The written waiver signed during the plea colloquy is likewise deficient, and there was no effort by the court to ascertain if defendant had read the waiver, was aware of its contents or had discussed it with counsel. Accordingly, as defendant's appreciation of the consequences of the waiver are not established on the record, the waiver is not valid (see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; People v. Rabideau, 130 A.D.3d 1094, 1094–1095, 12 N.Y.S.3d 386 [2015] ; People v. Ashlaw, 126 A.D.3d 1236, 1237, 5 N.Y.S.3d 614 [2015] ).

Defendant's challenges to the voluntariness and factual sufficiency of his guilty plea are unpreserved for our review in the absence of an appropriate postallocution motion raising these claims1 (see

31 N.Y.S.3d 668

People v. Atkinson, 124 A.D.3d 1149, 1150, 2 N.Y.S.3d 687 [2015], lv. denied 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 [2015] ). The narrow exception to the preservation rule is inapplicable inasmuch as the record does not disclose that defendant made statements during the plea allocution casting doubt upon his guilt or negating a material element of the crime (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Contrary to his assertions, the allocution was not ambiguous and he was “not required to recite the elements of his crime[s] or engage in a factual exposition, as his unequivocal affirmative responses to County Court's questions were sufficient to establish the elements of the crime [s] charged” (People v. Rouse, 119 A.D.3d 1161, 1163, 989 N.Y.S.2d 395 [2014] [internal quotation marks and citation omitted] ). Moreover, defendant did not make any statements during the plea colloquy suggestive of an intoxication defense, and his postplea remark during a discussion concerning the order of protection did not obligate the court to make further inquiry regarding a potential defense (see People

139 A.D.3d 1243

v. Mayo, 130 A.D.3d 1099, 1100, 12 N.Y.S.3d 389 [2015] ; People v. Pearson, 110 A.D.3d 1116, 1116–1117, 972 N.Y.S.2d 359 [2013] ; cf. People v. Peterson, 124 A.D.3d 993, 994, 1 N.Y.S.3d 517 [2015] ).

Defendant next argues that County Court abused its discretion in terminating him from the program. However, defendant consented to his termination from...

To continue reading

Request your trial
31 cases
  • People v. Peasley
    • United States
    • New York Supreme Court — Appellate Division
    • September 15, 2022
    ...A.D.3d 1142, 1145, 55 N.Y.S.3d 357 [2d Dept. 2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017] ; People v. Larock, 139 A.D.3d 1241, 1243–1244, 31 N.Y.S.3d 665 [3d Dept. 2016], lv denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ; People v. Smith, 108 A.D.3d a......
  • People v. Brockway
    • United States
    • New York Supreme Court — Appellate Division
    • March 31, 2017
    ...[his] factual innocence" (People v. Caldavado, 26 N.Y.3d 1034, 1037, 22 N.Y.S.3d 159, 43 N.E.3d 369 ; see People v. Larock, 139 A.D.3d 1241, 1244, 31 N.Y.S.3d 665, lv. denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 ). Defendant had over $15,000 in cash on his person when he was arreste......
  • People v. Mangarillo
    • United States
    • New York Supreme Court — Appellate Division
    • July 27, 2017
    ...unreliable form of evidence’ " ( People v. Howe, 150 A.D.3d 1321, 1323, 54 N.Y.S.3d 190 [2017], quoting People v. Larock, 139 A.D.3d 1241, 1243, 31 N.Y.S.3d 665 [2016], lv. denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ). Given the foregoing and that defendant was aware that he......
  • People v. Williams, 108529
    • United States
    • New York Supreme Court — Appellate Division
    • April 16, 2020
    ...1213, 1214, 834 N.Y.S.2d 590 [2007], lv denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761 [2007] ; accord People v. Larock, 139 A.D.3d 1241, 1245, 31 N.Y.S.3d 665 [2016], lv denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ), and whatever doubt it cast upon the extensive proof......
  • 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