People v. Mickel

• Decision Date: 18 January 2018
• Docket Number: 108232
• Parties: The PEOPLE of the State of New York, Respondent, v. Kyle R. MICKEL, Appellant.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 1140

66 N.Y.S.3d 924 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Kyle R. MICKEL, Appellant.

108232

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

Calendar Date: December 14, 2017

Decided and Entered: January 18, 2018

Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Devine, J.Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered December 16, 2015, (1) convicting defendant upon his plea of guilty of the crime of burglary in the third degree, and (2) which revoked defendant's probation and imposed a sentence of imprisonment.

In satisfaction of charges pending against him, defendant waived indictment and agreed to plead guilty to a superior court information charging him with burglary in the third degree. During the plea colloquy, defendant admitted that he had entered a building without permission and assaulted the victim therein, but denied that he had entered the building with the intent to commit a crime, as required to establish burglary in the third degree (see Penal Law § 140.20 ). Following an inquiry by County Court, during which defendant affirmed that he had discussed the evidence against him with counsel and wished to avoid the possibility of a harsher sentence if convicted at trial, defendant entered an Alford plea to burglary in the third degree. County Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon sentence of 2 to 4 years in prison. County Court also imposed a sentence of 2 to 6 years in prison, resulting from a previous admission by defendant to violating probation, and ordered the sentences to run concurrently. Defendant now appeals.

We affirm. Defendant's contention that County Court erred in accepting his Alford plea because the record does not contain strong evidence of his guilt survives his appeal waiver to the extent that it implicates the voluntariness of his plea, but is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, and the exception to the preservation rule is inapplicable (see People v. Heidgen, 22 N.Y.3d 981, 981–982, 979 N.Y.S.2d 553, 2 N.E.3d 921 [2013] ; People v. Hughes, 134 A.D.3d 1301, 1301, 21 N.Y.S.3d 483 [2015], lv denied 27 N.Y.3d 966, 36 N.Y.S.3d 627, 56 N.E.3d 907 [2016]...