People v. Ruffins

• Decision Date: 12 November 2010
• Citation: 78 A.D.3d 1627,910 N.Y.S.2d 625
• Parties: The PEOPLE of the State of New York, Respondent, v. Aaron L. RUFFINS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 625

78 A.D.3d 1627

The PEOPLE of the State of New York, Respondent,

v.Aaron L. RUFFINS, Defendant-Appellant.

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

Nov. 12, 2010.

Nelson S. Torre, Buffalo, for Defendant-Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Respondent.

PRESENT: CENTRA, J.P., CARNI, SCONIERS, AND PINE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the second degree (Penal Law § 160.10[2][a] ). We reject the contention of defendant that his waiver of the right to appeal was not knowingly,voluntarily, and intelligently entered ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Streeter, 71 A.D.3d 1463, 897 N.Y.S.2d 358, lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016). The responses of defendant to County Court's questions during the plea colloquy establish that he understood the consequences of waivingthe right to appeal and voluntarily waived that right ( see People v. Tantao, 41 A.D.3d 1274, 838 N.Y.S.2d 757, lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761). Furthermore, there is no indication in the record that the age, experience, or background of defendant rendered his waiver of the right to appeal invalid ( see generally People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Although the contention of defendant that his plea was not knowingly, voluntarily, and intelligently entered because of an alleged misrepresentation made by the court "survives his valid waiver of the right to appeal ..., defendant did not move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve his contention for our review" ( People v. Dozier, 59 A.D.3d 987, 987, 872 N.Y.S.2d 317, lv. denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931). This case does not fall within the narrow exception to the preservation requirement ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Brown, 66 A.D.3d 1385, 885 N.Y.S.2d 660, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566).

Defendant further contends that the conviction was "jurisdictionally defective" because there was no "factual predicate" for the crime to which he pleaded guilty. Defendant in effect is thereby challenging the factual sufficiency of the plea allocution, and that challenge therefore is encompassed by defendant's waiver of the right to appeal ( see People v. Jamison, 71 A.D.3d 1435, 1436, 896 N.Y.S.2d 780, lv. denied 14 N.Y.3d 888, 903 N.Y.S.2d 777, 929 N.E.2d 1012; Brown, 66 A.D.3d at 1385, 885 N.Y.S.2d 660). Additionally, defendant failed to preserve that challenge for our review by failing to move to withdraw the plea or to vacate the judgment of conviction ( see Lopez, 71 N.Y.2d at 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; Jamison, 71 A.D.3d at 1436, 896 N.Y.S.2d 780). In any event, that challenge is without merit inasmuch as "there is no requirement that defendant recite the underlying facts of the crime to which he is pleading guilty" ( People v. Bailey, 49 A.D.3d 1258, 1259, 852 N.Y.S.2d 892; see People v. Seeber...