People v. Vittengl

• Decision Date: 17 March 2022
• Docket Number: 110560, 112711
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael VITTENGL, Appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1390
163 N.Y.S.3d 715

The PEOPLE of the State of New York, Respondent,
v.
Michael VITTENGL, Appellant.

110560, 112711

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

Calendar Date: February 15, 2022
Decided and Entered: March 17, 2022

163 N.Y.S.3d 716

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Robert P. McCarty of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Reynolds Fitzgerald and Fisher, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeals (1) from a judgment of the County Court of Warren County (Hall Jr., J.), rendered May 9, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the third degree, and (2) by permission, from an order of said court (Smith, J),

163 N.Y.S.3d 717

entered February 1, 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In May 2018, defendant pleaded guilty to criminal possession of stolen property in the third degree and received a split sentence of six months in jail and five years of probation. The plea agreement, which also encompassed other pending charges, required defendant to waive his right to appeal. Shortly thereafter, defendant was charged with violating certain terms and conditions of his probation. Pursuant to a negotiated disposition, defendant admitted the violations, and County Court (Hall Jr., J.) revoked defendant's probation and sentenced him to a prison term of 2 to 6 years. Upon appeal from the resulting October 2018 judgment, this Court affirmed, noting that defendant's discharge from prison and parole supervision in January 2020 rendered his challenge to the severity of his sentence moot ( 195 A.D.3d 1233, 145 N.Y.S.3d 868 [2021] ). In the interim, defendant appealed from the May 2018 judgment of conviction and moved to vacate such judgment pursuant to CPL 440.10 contending, among other things, that his plea was involuntary and that he received the ineffective assistance of counsel. County Court (Smith, J.) denied defendant's motion without a hearing, and these appeals – from the judgment of conviction and, by permission, from the denial of defendant's CPL 440.10 motion – ensued.

We affirm. Contrary to defendant's assertion, we find that he knowingly, intelligently and voluntarily waived his right to appeal. County Court (Hall Jr., J.) explained the separate and distinct nature of the right to appeal, and, following a discussion with counsel, defendant signed a written waiver in open court and confirmed his understanding thereof (see People v. Hammond, 186 A.D.3d 1836, 1836, 129 N.Y.S.3d 345 [2020] ; People v. White, 185 A.D.3d 1355, 1356, 126 N.Y.S.3d 438 [2020], lv denied 36 N.Y.3d 977, 138 N.Y.S.3d 463, 162 N.E.3d 692 [2020] ). To the extent that the written waiver contained overbroad language, it did not purport to erect an absolute bar to appellate review (compare People v. Lunan, 196 A.D.3d 969, 969–970, 148 N.Y.S.3d 408 [2021] ; People v. Winters, 196 A.D.3d 847, 848–849, 151 N.Y.S.3d 263 [2021], lvs denied 37 N.Y.3d 1025, 1030, 153 N.Y.S.3d 413, 175 N.E.3d 438, 439 [2021]) and, during the oral colloquy with defendant, County Court reiterated that defendant was not completely forfeiting all of his appellate rights. Accordingly, and as we otherwise discern no other infirmities in the waiver (compare People v. Thomas, 34 N.Y.3d 545, 562–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ), we find that defendant's waiver of the right to appeal was valid (see People v. Carter, 200 A.D.3d 1312, 1313, 155 N.Y.S.3d 381 [2021] ; People v. Mirel, 194 A.D.3d 1198, 1199, 146 N.Y.S.3d 703 [2021] ).

Defendant's claim that County Court erred in accepting his Alford plea survives even a valid appeal waiver (see People v. Fallen, 106 A.D.3d 1118, 1119, 963 N.Y.S.2d 777 [2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ), and we are persuaded that, under the particular facts of this case, such claim was not subject to the preservation requirement. County Court "sentenced defendant immediately following defendant's guilty plea and, therefore, defendant had no practical opportunity to move to withdraw his plea prior to sentencing" ( People v. Pace, 192 A.D.3d 1274, 1275, 142 N.Y.S.3d 678 [2021] [internal quotation marks and citation omitted], lv denied

163 N.Y.S.3d 718

37 N.Y.3d 973, 150 N.Y.S.3d 706, 172 N.E.3d 819 [2021] ). That said, we find defendant's contention to be unpersuasive.

"An Alford plea, wherein the accused is permitted to enter a guilty plea without admitting culpability, may be allowed only where such plea ‘is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt’ " ( People v. Stewart, 307 A.D.2d 533, 534, 763 N.Y.S.2d 688 [2003], quoting Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] [citation omitted]; see People v. Ture, 94 A.D.3d 1163, 1164, 941 N.Y.S.2d 530 [2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ;...