People v. Proper
| Decision Date | 05 November 2015 |
| Docket Number | 106180 |
| Citation | 2015 N.Y. Slip Op. 08006,133 A.D.3d 918,18 N.Y.S.3d 793 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Richard C. PROPER Jr., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert D. Siglin, Elmira, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: GARRY, J.P., ROSE, LYNCH and DEVINE, JJ.
GARRY, J.P.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered August 15, 2013, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree (two counts).
In satisfaction of a two-count indictment charging him with robbery in the first degree, defendant pleaded guilty to two counts of attempted robbery in the first degree and admitted committing separate robberies of store clerks at knife-point on different days. Pursuant to a plea agreement that included a waiver of appeal, defendant was sentenced as a second felony offender to an aggregate prison term of 10 years, followed by five years of postrelease supervision. Defendant appeals, and we affirm.
Initially, as the People concede, defendant's waiver of appeal is invalid. The record fails to reflect defendant's understanding of the waiver or “that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ; People v. Bouton, 107 A.D.3d 1035, 1036, 967 N.Y.S.2d 200 [2013], lv. denied 21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013] ).
As to the merits, defendant argues that his guilty plea was not knowing, voluntary and intelligent because County Court failed to advise him of the rights he was waiving by pleading guilty, including “the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” (People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013], citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ; accord People v. Vences, 125 A.D.3d 1050, 1051, 3 N.Y.S.3d 185 [2015] ). While this claim was not preserved through a postallocution motion to withdraw the plea, to the extent that it challenges a mode of proceedings error, preservation was not required (see People v. Tyrell, 22 N.Y.3d at 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Mones, 130 A.D.3d 1244, 1245, 13 N.Y.S.3d 686 [2015] ). In any event, we find this contention to be without merit. While “there must be an affirmative showing on the record that the defendant waived his constitutional rights,” the court was not required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit ... detailed waivers before accepting the guilty plea” (People v. Tyrell, 22 N.Y.3d at 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [internal quotation marks and citations omitted]; see People v. Klinger, 129 A.D.3d 1115, 1116–1117, 10 N.Y.S.3d 366 [2015] ). Here, contrary to defendant's contentions, review of the record reveals that County Court adequately advised him of the terms of the plea agreement, the constitutional and trial-related rights he was forfeiting by pleading guilty, and the consequences of his plea, and defendant indicated that he understood and admitted the charged conduct (cf. People v. Klinger, 129 A.D.3d at 1117, 10 N.Y.S.3d 366 ; People v. Vences, 125 A.D.3d at 1051, 3 N.Y.S.3d 185 ). Ac...
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