People v. Palladino

• Decision Date: 29 June 2016
• Citation: 2016 N.Y. Slip Op. 05176,33 N.Y.S.3d 469,140 A.D.3d 1194
• Parties: The PEOPLE, etc., respondent, v. Brandon PALLADINO, appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1194

33 N.Y.S.3d 469

2016 N.Y. Slip Op. 05176

The PEOPLE, etc., respondent,

v.Brandon PALLADINO, appellant.

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

June 29, 2016.

Thomas Theophilos, Buffalo, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle, J.), rendered February 2, 2011, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review (see People v. Davis, 24 N.Y.3d 1012, 1013, 997 N.Y.S.2d 115, 21 N.E.3d 568 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see also People v. Crowder, 24 N.Y.3d 1134, 1136–1137, 3 N.Y.S.3d 309, 26 N.E.3d 1164 ; People v. Murray, 15 N.Y.3d 725, 726–727, 906 N.Y.S.2d 521, 932 N.E.2d 877 ; People v. Ullah, 130 A.D.3d 759, 760, 12 N.Y.S.3d 307 ; People v. Brown, 107 A.D.3d 819, 966 N.Y.S.2d 675 ; People v. Borges, 103 A.D.3d 747, 748, 959 N.Y.S.2d 533 ; cf. People v. Turner, 24 N.Y.3d 254, 258–259, 997 N.Y.S.2d 671, 22 N.E.3d 179 ). Contrary to the defendant's contention, the exception to the preservation requirement does not apply here, because the plea allocution did not cast significant doubt on the defendant's guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v. Davis, 24 N.Y.3d at 1013, 997 N.Y.S.2d 115, 21 N.E.3d 568 ; People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).

Similarly, the defendant's contention that his plea of guilty was invalid because the Supreme Court failed to advise him of all of his constitutional rights under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 is unpreserved for appellate review because he did not move to vacate his plea prior to the imposition of sentence or otherwise raise the issue in the Supreme Court (see People v. Murphy, 135 A.D.3d 881, 881, 22 N.Y.S.3d 892 ; People v. Isaiah S., 130 A.D.3d 1081, 1081–1082, 13 N.Y.S.3d 840 ).

The defendant validly waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Ropiza, 100 A.D.3d 935, 936, 954 N.Y.S.2d 188 ; People v. Watt, 82 A.D.3d 912, 918 N.Y.S.2d 347 ). Contrary to the defendant's contention, the alleged ineffective assistance did not affect the voluntariness of his plea (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Watt, 82 A.D.3d at 912–913, 918 N.Y.S.2d 347 ). Further, the defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Duchatellier, 138 A.D.3d 887, 28 N.Y.S.3d 332 ).

The defendant's nonjurisdictional challenges to the indictment...