People v. Mack, 2017-00599

• Court: New York Supreme Court Appellate Division
• Citation: 92 N.Y.S.3d 404,168 A.D.3d 1100
• Docket Number: 2017-00600,2017-00601,2017-00599,Ind. Nos. 15-406, 15-447, 15-449
• Parties: The PEOPLE, etc., Respondent, v. Jacqueline MACK, Appellant.
• Decision Date: 30 January 2019

168 A.D.3d 1100
92 N.Y.S.3d 404

The PEOPLE, etc., Respondent,
v.
Jacqueline MACK, Appellant.

2017-00599
2017-00600
2017-00601
Ind. Nos. 15-406, 15-447, 15-449

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

Submitted — September 27, 2018
January 30, 2019

Mark Diamond, New York, NY, for appellant.

Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Tina L. Guccione of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.

92 N.Y.S.3d 406

DECISION & ORDER

168 A.D.3d 1100

ORDERED that the judgments are affirmed.

A waiver of the right to appeal will not be enforced unless it was knowingly, intelligently, and voluntarily made (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). Furthermore, the waiver is effective only when the record demonstrates that the defendant has a full appreciation of the consequences of that waiver (see People v. Cassadean, 160 A.D.3d 655, 656, 72 N.Y.S.3d 575 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ).

Contrary to the defendant's contention, she knowingly, voluntarily, and intelligently waived her right to appeal at the time she entered her pleas of guilty (see People v. Moore, 140 A.D.3d 1091, 34 N.Y.S.3d 147 ; People v. Corbin, 121 A.D.3d 803, 993 N.Y.S.2d 746 ). The

168 A.D.3d 1101

record shows that the Supreme Court adequately explained, and the defendant acknowledged that she understood, the separate and distinct nature of the waiver of the right to appeal, and the defendant signed a written waiver which she discussed with counsel and which adequately supplemented the oral colloquy.

"Whether a plea was knowing, intelligent and voluntary is dependent upon a number of factors ‘including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused’ " ( People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311, quoting People v. Hidalgo, 91 N.Y.2d 733, 736, 675 N.Y.S.2d 327, 698 N.E.2d 46 ; see People v. Conceicao, 26 N.Y.3d 375, 383–384, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Duart, 144 A.D.3d 1173, 41 N.Y.S.3d 747 ).

Although a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Persaud, 109 A.D.3d 626, 626, 970 N.Y.S.2d 324 ), here, the defendant's contention that her pleas of guilty were not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review because she did not move to withdraw her pleas prior to the imposition of sentence (see People v. Bennett, 122 A.D.3d 871, 996 N.Y.S.2d 369 ; People v. Lofton, 115 A.D.3d 989, 989, 982 N.Y.S.2d 587 ). Further, the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon her guilt, negate...