Opinion
2021-05211
10-01-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KYLE L. BORLAND, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), rendered October 29, 2018. The judgment convicted defendant upon a plea of guilty of attempted burglary in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20). We agree with defendant that the waiver of the right to appeal "is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant 'understood the nature of the appellate rights being waived'" (People v Youngs, 183 A.D.3d 1228, 1228 [4th Dept 2020], lv denied 35 N.Y.3d 1050 [2020], quoting People v Thomas, 34 N.Y.3d 545, 559 [2019], cert denied __ U.S. __, 140 S.Ct. 2634 [2020]). Nevertheless, we affirm. Defendant failed to preserve for our review his contention that his guilty plea was not knowingly, voluntarily, or intelligently entered inasmuch as he did not move to withdraw his guilty plea or to vacate the judgment of conviction (see People v Turner, 175 A.D.3d 1783, 1784 [4th Dept 2019], lv denied 34 N.Y.3d 1082 [2019]), and we conclude that this case does not fall within the narrow exception to the preservation rule set forth in People v Lopez (71 N.Y.2d 662, 666-667 [1988]). Further, the sentence is not unduly harsh or severe.