People v. Sabo

• Decision Date: 28 May 2014
• Citation: 986 N.Y.S.2d 232,117 A.D.3d 1089,2014 N.Y. Slip Op. 03870
• Parties: The PEOPLE, etc., respondent, v. Michael SABO, appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1089
986 N.Y.S.2d 232
2014 N.Y. Slip Op. 03870

The PEOPLE, etc., respondent,
v.
Michael SABO, appellant.

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

May 28, 2014.

Lipsitz Green Scime Cambria, LLP, Buffalo, N.Y. (Timothy P. Murphy of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Arieh Schulman of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.

[986 N.Y.S.2d 233]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Guidice, J.), rendered May 21, 2012, convicting him of course of sexual conduct against a child in the first degree and predatory sexual assault against a child, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that the judgment is affirmed.

The defendant validly waived his right to appeal. At the plea allocution, the Supreme Court sufficiently advised the defendant of the nature of the right to appeal, and the record establishes that the defendant knowingly, voluntarily, and intelligently waived that right ( see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222).

The defendant's contention that his plea was not knowing and voluntary is unpreserved for appellate review since he failed to move to withdraw his plea ( seeCPL 470.05[2]; People v. Decker, 77 A.D.3d 675, 908 N.Y.S.2d 361;People v. Patel, 74 A.D.3d 1098, 1099, 904 N.Y.S.2d 99). The narrow exception to the preservation rule, which arises when the defendant's plea recitation of the facts underlying the crime casts significant doubt on the defendant's guilt or otherwise calls into question the voluntariness of the plea ( see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5), is inapplicable in this case. In any event, the record of the plea proceeding establishes that the plea of guilty was knowing and voluntary ( see People v. Decker, 77 A.D.3d at 675, 908 N.Y.S.2d 361;People v. Patel, 74 A.D.3d at 1099, 904 N.Y.S.2d 99).

The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive ( see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222;People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Tarrant, 114 A.D.3d 710, 979 N.Y.S.2d 827).

The defendant's contention that the...