People v. Luck, 2017–02401

• Court: New York Supreme Court Appellate Division
• Citation: 175 A.D.3d 1430,109 N.Y.S.3d 220
• Docket Number: 2019–04462 ,2017–02401,Ind.No. 7/16
• Parties: The PEOPLE, etc., Respondent, v. Melinda S. LUCK, Appellant.
• Decision Date: 18 September 2019

175 A.D.3d 1430
109 N.Y.S.3d 220

The PEOPLE, etc., Respondent,
v.
Melinda S. LUCK, Appellant.

2017–02401
2019–04462
Ind.No. 7/16

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

Submitted—April 29, 2019
September 18, 2019

Melinda Luck, named herein as Melinda S. Luck, Mahopac Falls, NY, appellant pro se.

Robert V. Tendy, District Attorney, Carmel, N.Y. (David M. Bishop of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, HECTOR D. LASALLE, JJ.

109 N.Y.S.3d 221

DECISION & ORDER

175 A.D.3d 1430

Appeals by the defendant from (1) a judgment of the County Court, Putnam County (James T. Rooney, J.), rendered January 11, 2017, convicting her of driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192(3), upon her plea of guilty, and imposing sentence, and (2) a resentence of the same court imposed March 29, 2017.

ORDERED that the judgment and the resentence are affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Although the defendant's

175 A.D.3d 1431

contention concerning the voluntariness of her plea survives her valid appeal waiver (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 ; People v. Camarda, 138 A.D.3d 884, 29 N.Y.S.3d 511 ), the contention is unpreserved for appellate review because she did not move to vacate her plea or otherwise raise the issue in the County Court (see CPL 220.60 ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Bautista, 138 A.D.3d 754, 27 N.Y.S.3d 893 ; People v. Scott, 39 A.D.3d 570, 571, 834 N.Y.S.2d 226 ). While an exception to the preservation requirement applies when a defendant's recitation of the facts underlying the crime casts significant doubt on the defendant's guilt, negates an essential element of the crime, or calls into question the voluntariness of the plea (see People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929 ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), that is not the case here.

In any event, the record as a whole affirmatively demonstrates that the defendant entered her plea of guilty knowingly, voluntarily, and intelligently (see People v. Conceicao, 26 N.Y.3d 375, 382–383, 44 N.E.3d 199 ; People v. Harris, 61 N.Y.2d 9, 19–20, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. May, 138 A.D.3d 1146, 30 N.Y.S.3d 327 ). The Court of Appeals has "never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense, or provides a factual exposition for each element of the pleaded-to offense. Indeed, ‘[the Court has] said repeatedly that there is no requirement for a uniform mandatory catechism of pleading defendants’ " ( People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [citations omitted], quoting People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ). "Rather, ‘[i]t is enough that the allocution shows...