People v. Ramos

• Decision Date: 29 August 2018
• Docket Number: Ind.No. 16–00064,2016–12888
• Citation: People v. Ramos, 164 A.D.3d 922, 82 N.Y.S.3d 103 (N.Y. App. Div. 2018)
• Parties: The PEOPLE, etc., Respondent, v. Percy RAMOS, Appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 922

82 N.Y.S.3d 103

The PEOPLE, etc., Respondent,

v.Percy RAMOS, Appellant.

2016–12888

Ind.No. 16–00064

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

Submitted—April 30, 2018

August 29, 2018

Mark Diamond, New York, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.

RUTH C. BALKIN, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE, NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County(Barbara Gunther Zambelli, J.), rendered September 20, 2016, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.Upon the appeal from the judgment, the duration of the orders of protection issued at the time of sentencing will be reviewed as a matter of discretion in the interest of justice (seeCPL 470.15[6][a] ).

ORDERED that upon the appeal from the judgment, so much of the orders of protection as directed that they remain in effect until and including September 20, 2037, are vacated, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the County Court, Westchester County, for a new determination of the duration of the orders of protection consistent herewith; and it is further,

ORDERED that the judgment is affirmed.

The defendant validly waived his right to appeal (seePeople v. Bradshaw,18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Ramos,7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222;People v. Lopez,6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Hidalgo,91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46;People v. Brown,122 A.D.3d 133, 142, 992 N.Y.S.2d 297 ).The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge to the factual sufficiency of his plea allocution (seePeople v. Simpson,152 A.D.3d 627, 627, 55 N.Y.S.3d 662;People v. Smith,146 AD3d 904, 904;People v. Thompson,143 A.D.3d 1007, 1008, 39 N.Y.S.3d 800 ).

The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (seePeople v. Smith,146 A.D.3d at 904, 44 N.Y.S.3d 771;People v. Magnotta,137 A.D.3d 1303, 1303, 27 N.Y.S.3d 403 ).However, the defendant failed to preserve this contention for appellate review, since he did not move to vacate his plea or otherwise raise this issue before the County Court(seePeople v. Smith,146 A.D.3d at 904–905, 44 N.Y.S.3d 771;People v. Narbonne,131 A.D.3d 626, 627, 14 N.Y.S.3d 917 ).Contrary to the defendant's contention, the "rare case" exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( People v. Lopez,71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;seePeople v. Davis,24 N.Y.3d 1012, 1013, 997 N.Y.S.2d 115, 21 N.E.3d 568;People v. Stone,91 A.D.3d 977, 977, 937 N.Y.S.2d 630 ).

In any event, the defendant's contention that his plea was not knowing, voluntary, and intelligent is without merit.Contrary to the defendant's contention, the Court of Appeals has "never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense ... or provides a factual exposition for each element of the pleaded-to offense"( People v. Seeber,4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797;seePeople v. Goldstein,12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ).The Court of Appeals has stated that "no catechism is required in connection with the acceptance of a plea"( People v. Goldstein,12 N.Y.3d at 301, 879 N.Y.S.2d 814, 907 N.E.2d 692;seePeople v. Seeber,4 N.Y.3d at 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ), and has "refused to disturb pleas by canny defendants even when there has been absolutely no elicitation of the underlying facts of the crime"( People v. Goldstein,12 N.Y.3d at 301, 879 N.Y.S.2d 814, 907 N.E.2d 692, citingPeople v. Fooks,21 N.Y.2d 338, 350, 287 N.Y.S.2d 659, 234 N.E.2d 687 ).Rather, "[i]t is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea"( People v. Goldstein,12 N.Y.3d at 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ).Here, the record of the plea proceeding demonstrates that the defendant understood the charges and made an intelligent decision to enter a plea (seeid.;People v. Woods,147 A.D.3d 1156, 1157, 46 N.Y.S.3d 441;People v. Nichols,77 A.D.3d 1339, 1340, 908 N.Y.S.2d 295 ).

The defendant's contentions regarding the validity and duration of two orders of protection issued at the time of sentencing survive his appeal waiver (seePeople v. Kennedy,151 A.D.3d 1079, 1079, 54 N.Y.S.3d 596;People v. Bernardini,142 A.D.3d 671, 671, 36 N.Y.S.3d 827 ).Furthermore, the validity and duration of the orders of protection, which were issued upon the defendant's conviction, are issues properly before this Court on the appeal from the judgment (seePeople v. Nieves,2 N.Y.3d 310, 315, 778 N.Y.S.2d 751, 811 N.E.2d 13 ).However, those contentions are unpreserved for appellate review, since the defendant did not raise them at sentencing or move to amend the final orders of protection (seeid. at 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13;People v. Rodriguez,157 A.D.3d 971, 67 N.Y.S.3d 485;People v. O'Connor,136 A.D.3d 945, 945, 24 N.Y.S.3d 918;People v. Ray,67 A.D.3d 711, 711, 886 N.Y.S.2d 889 ).Nevertheless, we reach these issues in the exercise of our interest of justice jurisdiction (seeCPL 470.15[6][a];...