People v. Rodriguez

• Decision Date: 22 December 2017
• Docket Number: 1387,KA 15–00528
• Citation: 65 N.Y.S.3d 877 (Mem),156 A.D.3d 1433
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander RODRIGUEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1433

65 N.Y.S.3d 877 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Alexander RODRIGUEZ, Defendant–Appellant.

1387

KA 15–00528

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

Entered: December 22, 2017

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON OF COUNSEL), FOR DEFENDANT–APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDERMemorandum:

Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ) and one count of attempted assault in the first degree (§§ 110.00, 120.10[1] ). Contrary to defendant's contention, he knowingly, intelligently, and voluntarily waived the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). County Court "expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea" ( People v. McCrea, 140 A.D.3d 1655, 1655, 32 N.Y.S.3d 778 [4th Dept. 2016], lv denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] [internal quotation marks omitted]; see People v. Mills, 151 A.D.3d 1744, 1745, 57 N.Y.S.3d 298 [4th Dept. 2017], lv. denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ). The valid waiver of the right to appeal encompasses defendant's challenge to the factual sufficiency of the plea allocution (see McCrea, 140 A.D.3d at 1655, 32 N.Y.S.3d 778 ), and, in any event, that challenge is not preserved for our review because defendant did not move to withdraw the plea or to vacate the judgment of conviction (see id. at 1655–1656, 32 N.Y.S.3d 778 ; see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).

To the extent that defendant challenges the voluntariness of his plea, that contention, although not precluded by the valid waiver of the right to appeal (see People v. Neal, 148 A.D.3d 1699, 1699–1700, 50 N.Y.S.3d 666 [4th Dept. 2017], lv. denied 29 N.Y.3d 1084, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] ), is similarly unpreserved for our review "inasmuch as defendant did not move to withdraw the plea or vacate the judgment of conviction (see CPL 220.60[3] ; see also CPL 440.10 ), and nothing on the face of the record calls into question the voluntariness of the plea or casts significant doubt upon defendant's guilt" ( People v. Karlsen, 147 A.D.3d 1466, 1468, 47 N.Y.S.3d 584 [4th Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ).

Defendant further contends that the waiver of the right to appeal does not encompass his challenge to the severity of his sentence (see generally People v. Maracle, 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). Although the court, during its oral colloquy, referenced defendant's "right ... to appeal th[e] conviction" without referencing his right to challenge the severity of the sentence, we note that defendant executed and acknowledged in open court a written waiver of the right to appeal, in which he specifically agreed to waive "any issue relating to the conviction or sentence." Thus, we reject defendant's contention (see People v. Morales, 148 A.D.3d 1638, 1639, 51 N.Y.S.3d 298 [4th Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] ; cf. People v. Cook, 147 A.D.3d 1387, 1387–1388, 47 N.Y.S.3d 542 [4th Dept. 2017], lv denied 29...