People v. Walton

• Decision Date: 23 January 2019
• Docket Number: Ind. No. 840/15,2017–01351
• Parties: The PEOPLE, etc., Respondent, v. Taqiy WALTON, Appellant.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1001

90 N.Y.S.3d 543 (Mem)

The PEOPLE, etc., Respondent,

v.Taqiy WALTON, Appellant.

2017–01351

Ind. No. 840/15

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

Submitted—October 18, 2018

January 23, 2019

Marianne Karas, Thornwood, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, BETSY BARROS, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed.

Although the defendant validly waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; 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, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ), his contentions concerning the voluntariness of his plea of guilty survive his appeal waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ; People v. Lujan, 114 A.D.3d 963, 980 N.Y.S.2d 815 ; People v. Persaud, 109 A.D.3d 626, 970 N.Y.S.2d 324 ). However, the defendant's contentions that his plea was not knowing, voluntary, or intelligent, and that it was coerced by the remarks of the County Court and the prosecutor regarding the sentencing promise, are unpreserved for appellate review, since the defendant did not move to vacate his plea or otherwise raise these issues before the court (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Mitchell, 156 A.D.3d 817, 818, 65 N.Y.S.3d 730 ; People v. McCracken, 138 A.D.3d 1147, 28 N.Y.S.3d 890 ; People v. Perez, 51 A.D.3d 1043, 861 N.Y.S.2d 63 ). In any event, certain remarks at the outset of the plea proceeding, that the People's prior offer was no longer available and that their current offer would no longer be available if the defendant proceeded with the suppression hearings, were informative and not coercive (see People v. Marryshow, 135 A.D.3d 964, 24 N.Y.S.3d 170 ; see also People v. Guzman, 28 A.D.3d 396, 397, 812 N.Y.S.2d 871 ). Moreover, the defendant's claims are belied by the record, which reveals that the defendant acknowledged under oath that he was not threatened, coerced, or forced to plead guilty, and that he was entering the plea freely and voluntarily (see People v. Weston, 145 A.D.3d 746, 747, 43 N.Y.S.3d 413 ; People v. McVay, 140 A.D.3d 1090, 1090, 33 N.Y.S.3d 742 ; People v. Ward, 140 A.D.3d 903, 904, 32 N.Y.S.3d 648 ).

The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Seaberg, 74 N.Y.2d at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ).

RIVERA, J.P., CHAMBERS, COHEN and BARROS, JJ.,...