People v. Santiago

• Citation: 85 N.Y.S.3d 905 (Mem),166 A.D.3d 1561
• Decision Date: 16 November 2018
• Docket Number: 1095,KA 15–01597
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael SANTIAGO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1561
85 N.Y.S.3d 905 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Michael SANTIAGO, Defendant–Appellant.

1095
KA 15–01597

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

Entered: November 16, 2018

FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF COUNSEL), FOR DEFENDANT–APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree ( Penal Law § 130.50 [4 ] ), defendant contends that the waiver of the right to appeal is invalid. We reject that contention and conclude that defendant validly waived his 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] ). Although the valid waiver of the right to appeal forecloses our

85 N.Y.S.3d 906

review of defendant's contentions that the sentence is unduly harsh and severe and constitutes cruel and unusual punishment (see People v. Marshall, 144 A.D.3d 1544, 1545, 41 N.Y.S.3d 337 [4th Dept. 2016] ), it "does not encompass [defendant's] contention that the plea was not knowingly, intelligently or voluntarily entered" ( People v. Williams, 91 A.D.3d 1299, 1299, 937 N.Y.S.2d 506 [4th Dept. 2012] ). We thus address the merits of that contention.

Defendant contends that the plea was not knowingly, intelligently or voluntarily entered because of "his confusion concerning the ramifications of his guilty plea." That contention is preserved for our review by defendant's pro se oral motion to withdraw the plea (see CPL 220.60[3] ; People v. Gravino, 62 A.D.3d 1259, 1259, 877 N.Y.S.2d 725 [4th Dept. 2009], affd 14 N.Y.3d 546, 902 N.Y.S.2d 851, 928 N.E.2d 1048 [2010] ), which was directed to the same issue that is raised on appeal (cf. People v. Gibson, 140...