People v. Ocasio-Rosario

• Decision Date: 11 September 2014
• Citation: 120 A.D.3d 1463,991 N.Y.S.2d 905,2014 N.Y. Slip Op. 06120
• Parties: The PEOPLE of the State of New York, Respondent, v. Alan OCASIO–ROSARIO, Appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 1463

991 N.Y.S.2d 905

2014 N.Y. Slip Op. 06120

The PEOPLE of the State of New York, Respondent,

v.Alan OCASIO–ROSARIO, Appellant.

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

Sept. 11, 2014.

Neal D. Futerfas, White Plains, for appellant.

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

Before: McCARTHY, J.P., GARRY, EGAN JR., LYNCH and CLARK, JJ.

CLARK, J.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered August 3, 2012 in Ulster County, convicting defendantupon his plea of guilty of the crime of criminal contempt in the first degree.

In satisfaction of a four-count indictment and pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal contempt in the first degree and waived his right to appeal. Defendant admitted that on or about January 10, 2011, he violated an order of protection of which he had actual knowledge, and did so with the intent to harass, annoy, threaten or alarm the person for whose protection the order had been issued, namely, his child's mother, by attempting to shove her. He was sentenced, as agreed, to a prison term of 1 1/2 to 3 years as an admitted second felony offender and now appeals.

Defendant contends that his guilty plea was not knowing, voluntary and intelligent. However, courts are not required to recite any particular litany of rights or otherwise engage in a formalistic approach to guilty pleas ( see People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983]; People v. Nixon, 21 N.Y.2d 338, 355, 287 N.Y.S.2d 659, 234 N.E.2d 687 [1967], cert. denied393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709 [1969] ), and a plea will not be invalidated on appeal where it can be established that the defendant “consulted with his [or her] attorney about the constitutional consequences of a guilty plea” (People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013]; see North Carolina v. Alford, 400 U.S. 25, 29 n. 3, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970]; People v. Harris, 61 N.Y.2d at 16, 471 N.Y.S.2d 61, 459 N.E.2d 170). Here, in a detailed series of questions, Supreme Court clearly advised defendant of the various rights he was forfeiting in entering a plea, but only referenced defendant's right to a trial without specifying his right to a jury trial. When questioned in open court during the course of the allocution, however, defendant stated that his attorney had “explained everything” to him. Thus, the record before us establishes that defendant knowingly, intelligently and voluntarily waived his rights when entering his guilty plea ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993]; see also Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969]; People v. Harris, 61 N.Y.2d at 17, 471 N.Y.S.2d 61, 459 N.E.2d 170). The issue now raised was not preserved by a motion to withdraw the plea ( seeCPL 220.60 [3]; 470.05[2] ),...