Opinion
108705 109384
03-07-2019
The PEOPLE of the State of New York, Respondent, v. Michael F. ALLEVATO, Appellant.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Before: Lynch, J.P., Clark, Mulvey, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
Aarons, J.
In satisfaction of a three-count indictment, defendant pleaded guilty to rape in the first degree. Consistent with the terms of the plea agreement, defendant was sentenced to a prison term of eight years, to be followed by 10 years of postrelease supervision. Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he received the ineffective assistance of counsel. The motion was denied by County Court without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.
As an initial matter, we agree with defendant that his waiver of the right to appeal was invalid. County Court's brief statements to defendant failed to adequately explain the right to appeal, nor does the record indicate that the court "ensure[d] that defendant grasped the minimal information pertaining to the appeal waiver it provided during the plea colloquy" ( People v. Bradshaw , 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; see People v. Mallard , 163 A.D.3d 1350, 1350–1351, 82 N.Y.S.3d 653 [2018], lv denied 32 N.Y.3d 1066, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ; People v. Lewis , 138 A.D.3d 1346, 1347, 30 N.Y.S.3d 387 [2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ; People v. Davis , 136 A.D.3d 1220, 1221, 25 N.Y.S.3d 727 [2016], lv denied 27 N.Y.3d 1068, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016] ; People v. Pope , 129 A.D.3d 1389, 1389–1390, 14 N.Y.S.3d 512 [2015] ). Furthermore, defendant did not execute a written waiver of appeal until sentencing, and the court never confirmed at that time whether defendant understood the contents thereof (see People v. White , 163 A.D.3d 1358, 1358, 78 N.Y.S.3d 527 [2018], lvs denied 32 N.Y.3d 1002, 1009, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ; People v. Braye , 161 A.D.3d 1456, 1457, 77 N.Y.S.3d 754 [2018] ; People v. Thompson , 157 A.D.3d 1141, 1141, 69 N.Y.S.3d 744 [2018] ; People v. Metayeo , 155 A.D.3d 1239, 1240, 64 N.Y.S.3d 400 [2017] ; People v. Pope , 129 A.D.3d at 1389–1390, 14 N.Y.S.3d 512 ). That said, although defendant is not foreclosed from challenging the severity of his sentence, we discern no abuse of discretion or extraordinary circumstances warranting a modification in the interest of justice (see People v. Thompson , 157 A.D.3d at 1142, 69 N.Y.S.3d 744 ; People v. Ero , 139 A.D.3d 1248, 1250, 32 N.Y.S.3d 674 [2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ).
In the absence of a motion to withdraw his plea, defendant's challenge to the voluntariness of his plea was not preserved in his direct appeal (see People v. Lewis , 138 A.D.3d at 1347, 30 N.Y.S.3d 387 ; People v. Lang , 127 A.D.3d 1253, 1255, 7 N.Y.S.3d 618 [2015] ). For similar reasons, defendant's claim that his plea was invalid due to the ineffective assistance of counsel is unpreserved (see People v. Brewer , 155 A.D.3d 1447, 1449, 66 N.Y.S.3d 342 [2017] ). We further conclude that the narrow exception to the preservation requirement does not apply (see People v. Tamah , 133 A.D.3d 923, 924, 20 N.Y.S.3d 436 [2015] ). In this regard, the record reflects that when County Court asked defendant whether he had engaged in sexual intercourse with a person less than 13 years old, he responded, "Yep. What am I supposed to say? Forced into this." The court, however, explicitly stated to defendant in response to this comment, "I'm sorry, ... I didn't catch that." Defense counsel then requested a moment to speak with defendant. After defendant spoke with his counsel, the court then inquired of defendant, "[W]as there something else you wanted to say to me?" Defendant responded, "Nope." Under these particular circumstances, where the court did not hear defendant's comment and defendant did not reiterate it after being presented with an opportunity to do so, we cannot say that the court should have made a further inquiry to ensure that the plea was being made knowingly and voluntarily.
As to defendant's CPL 440.10 motion, defendant failed to demonstrate that "the nonrecord facts sought to be established are material and would entitle him to relief" ( People v. Satterfield , 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ; see People v. Jones , 161 A.D.3d 1311, 1313–1314 77 N.Y.S.3d 201 [2018], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 378, 106 N.E.3d 761 [2018] ). Furthermore, defense counsel secured a favorable plea for defendant, who noted at the time of the plea that he was satisfied with counsel's representation of him, and nothing in the record casts doubt upon counsel's effectiveness (see People v. Cooper , 126 A.D.3d 1046, 1047–1048, 4 N.Y.S.3d 392 [2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; People v. Sylvan , 108 A.D.3d 869, 870, 969 N.Y.S.2d 578, 969 N.Y.S.2d 578 [2013], lv denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] ; People v. Lee , 51 A.D.3d 1217, 1218, 857 N.Y.S.2d 366 [2008] ; People v. White , 47 A.D.3d 1062, 1064, 849 N.Y.S.2d 699 [2008], lv denied 10 N.Y.3d 818, 857 N.Y.S.2d 51, 886 N.E.2d 816 [2008] ; People v. Vinals , 2 A.D.3d 1210, 1211, 768 N.Y.S.2d 844 [2003] ). Accordingly, defendant's motion was properly denied without a hearing (see People v. Pecararo , 83 A.D.3d 1284, 1286–1287, 920 N.Y.S.2d 859 [2011], lv denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). Defendant's remaining arguments have been considered and are without merit.
Lynch, J.P., Clark, Mulvey and Devine, JJ., concur.
ORDERED that the judgment and order are affirmed.