People v. Perry
| Decision Date | 11 April 2008 |
| Docket Number | 100088. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BERNARD PERRY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered March 6, 2006, convicting defendant upon his plea of guilty of the crime of attempted rape in the first degree.
Malone Jr., J.
Defendant was charged with rape in the first degree based upon allegations that he engaged in sexual intercourse with the female victim by forcible compulsion. Defense counsel and the prosecution subsequently entered into a stipulation in lieu of motions under which they agreed to certain pretrial hearings, including a Huntley hearing, and to open file discovery. Thereafter, defense counsel made a discovery motion pursuant to CPL 240.20 to preclude the prosecution from introducing certain evidence at trial, which was denied by County Court. The prosecution, in turn, made a discovery application pursuant to CPL 240.40 to obtain tissue samples from defendant for DNA testing, which was granted by County Court. Following the Huntley hearing, County Court denied defendant's motion to suppress two statements that he gave to the police. Prior to trial, defendant entered into a plea agreement under which he pleaded guilty to attempted rape in the first degree and waived his right to appeal in exchange for a sentence not to exceed four years in prison, to be followed by a period of postrelease supervision. The plea agreement further provided that an order of protection would be entered in favor of the victim. Defendant was subsequently sentenced to the agreed upon prison term and five years of postrelease supervision. He now appeals.
We turn first to defendant's contention that his guilty plea was not knowingly, voluntarily or intelligently entered. Although defendant's waiver of his right to appeal does not foreclose him from raising this claim, his failure to make a motion to withdraw his plea or vacate the judgment of conviction renders it unpreserved (see People v Baldwin, 36 AD3d 1024, 1024 [2007]; People v Tuper, 256 AD2d 636, 636 [1998]). Nevertheless, even if we were to consider it, we would find it to be lacking in merit. The transcript of the plea proceedings discloses that County Court comprehensively explained the ramifications of defendant's guilty plea, including his waiver of the right to appeal, and that defendant communicated his understanding on the record. Defendant proceeded to allocute to the crime of attempted rape in the first degree and County Court accepted his guilty plea. Contrary to defendant's suggestion, there is nothing in the record to indicate that he was under the influence of a prescription drug that rendered him incapable of entering a voluntary plea. Under the circumstances presented, we find that the guilty plea and waiver of...
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