People v. Pollidore

• Decision Date: 24 December 2014
• Docket Number: 2013-00577
• Parties: The PEOPLE, etc., respondent, v. Jesika L. POLLIDORE, appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1058
997 N.Y.S.2d 752
2014 N.Y. Slip Op. 09021

The PEOPLE, etc., respondent
v.
Jesika L. POLLIDORE, appellant.

2013-00577

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

Dec. 24, 2014.

997 N.Y.S.2d 752

Salvatore C. Adamo, New York, N.Y., for appellant.

David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.

997 N.Y.S.2d 753

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and BETSY BARROS, JJ.

Opinion

123 A.D.3d 1058

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered August 30, 2012, convicting her of attempted burglary in the second degree, upon her plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant did not validly waive her right to appeal (see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Pressley, 116 A.D.3d 794, 983 N.Y.S.2d 322 ; People v. Keiser, 100 A.D.3d 927, 954 N.Y.S.2d 184 ).

Although the defendant's claims, that her plea of guilty was involuntary and that counsel's ineffectiveness affected the voluntariness of the plea, would survive even a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Duah, 91 A.D.3d 884, 936 N.Y.S.2d 907 ;

123 A.D.3d 1059

People v. McLean, 77 A.D.3d 684, 908 N.Y.S.2d 352 ), the defendant is, in any event, not entitled to relief on her substantive claims.

The defendant's contention that her plea of guilty was not knowing, voluntary, or intelligent because the County Court failed to advise her of the constitutional rights that she was waiving upon her plea is unpreserved for appellate review, since she did not move to vacate her plea or otherwise raise this issue in the County Court (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ; People v. Hayes, 91 A.D.3d 792, 936 N.Y.S.2d 902 ). Contrary to the defendant's contention, there is nothing in the record that casts significant doubt...