People v. McKeon
| Decision Date | 12 November 2010 |
| Citation | 910 N.Y.S.2d 623,78 A.D.3d 1617 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Richard J. McKEON, Jr., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
78 A.D.3d 1617
The PEOPLE of the State of New York, Respondent,
v.
Richard J. McKEON, Jr., Defendant-Appellant.
Supreme Court, Appellate Division, Fourth Department, New York.
Nov. 12, 2010.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu Of Counsel), for Defendant-Appellant.
Joseph V. Cardone, District Attorney, Albion, for Respondent.
PRESENT: MARTOCHE, J.P., CENTRA, CARNI, LINDLEY, AND PINE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20 [2] ). Contrary to defendant's contention, the record of the plea proceeding in County Court establishes that, pursuant to the terms of the plea agreement, defendant agreed to waive the right to appeal. The record further establishes that "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" and that his waiver of the right to appeal was knowingly, voluntarily, and intelligently entered ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Contrary to defendant's contention, certain comments made by the Supreme Court Justice who sentenced defendant, despite the fact that the plea was entered in County Court, were not relevant to, nor did they invalidate,
defendant's valid waiver of the right to appeal ( see generally People v. Moissett, 76 N.Y.2d 909, 912, 563 N.Y.S.2d 43, 564 N.E.2d 653).Although the contention of defendant that the plea was not knowingly and voluntarily entered survives his waiver of the right to appeal, he failed to preserve that contention for our review by failing to move to withdraw his guilty plea or to vacate the judgment of conviction on that ground ( see People v. Thomas, 72 A.D.3d 1483, 899 N.Y.S.2d 761). In any event, his contention is without merit. In support of that contention, defendant asserts that his actions may have been justified and that County Court mistakenly advised him that he had a duty to retreat from his home. Although we agree with defendant that the court mistakenly advised him concerning his duty to retreat ( see Penal Law § 35.15[2][a][i] ), we nevertheless conclude that the court's error did not render the plea invalid. Defendant did not indicate in his recitation of the facts underlying the crime that he reasonably believed that the victim was using or was about to use deadly physical force ( se...
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