People v. Lunan

• Citation: 34 N.Y.S.3d 913 (Mem),141 A.D.3d 947,2016 N.Y. Slip Op. 05591
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert LUNAN, Appellant.
• Decision Date: 21 July 2016
• Court: New York Supreme Court Appellate Division

141 A.D.3d 947

34 N.Y.S.3d 913 (Mem)

2016 N.Y. Slip Op. 05591

The PEOPLE of the State of New York, Respondent,

v.Robert LUNAN, Appellant.

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

July 21, 2016.

Barrett D. Mack, Albany, for appellant.

D. Holley Carnright, District Attorney (Joan Gudesblatt Lamb of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.

LYNCH

, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 25, 2014, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.

Pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty as charged in a superior court information to grand larceny in the fourth degree, and his plea included the waiver of the right to appeal. The plea embraced charges from both the Town of Ulster and the Town of Esopus, specifically requiring defendant to plead guilty to the larceny charge arising out of the Town of Esopus arrest and pay restitution of $1,500 to the victim in the Town of Ulster. County Court thereafter sentenced defendant as a second felony offender to the agreed-upon prison term of 2 to 4 years. Defendant now appeals.

We affirm. Initially, we agree with defendant that his waiver of the right to appeal was not knowingly, intelligently and voluntarily made. The record reveals that he was not adequately informed that the right to appeal is “separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]

; see

People v. Bradshaw, 18 N.Y.3d 257, 264–266, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). Moreover, although defendant executed a written waiver in open court, the court failed to engage in any discussion with defendant or his attorney as to whether defendant comprehended the waiver (see

People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Jeffery, 135 A.D.3d 1235, 1236, 23 N.Y.S.3d 589 [2016] ; People v. Pope, 129 A.D.3d 1389, 1390, 14 N.Y.S.3d 512 [2015] ; People v. Ashlaw, 126 A.D.3d 1236, 1237, 5 N.Y.S.3d 614 [2015] ; compare

People v. McCray, 139 A.D.3d 1235, 1236, 31 N.Y.S.3d 659 [2016] ). That said, defendant's challenges to the voluntariness of his plea are not preserved for our review, since he failed to make an appropriate postallocution motion (see

People v. Williams,

27 N.Y.3d 212, 219, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). Further, defendant made no statements during his plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation rule (see

People v. Lopez, 71 N.Y.2d 662, 664–665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Blair, 136 A.D.3d 1105, 1106, 24 N.Y.S.3d 451 [2016] ; People v. Kormos, 126 A.D.3d 1039, 1040, 4 N.Y.S.3d 390 [2015] ), and reversal in the interest of justice is unwarranted. Accordingly, the judgment of conviction is...