Opinion
2021-50586
06-24-2021
The People of the State of New York, Respondent, v. Anthony Cook, Appellant.
Suffolk County Legal Aid Society (Amanda E. Schaefer of counsel), for appellant. Suffolk County District Attorney (Edward A. Bannon of counsel), for respondent.
Unpublished Opinion
Suffolk County Legal Aid Society (Amanda E. Schaefer of counsel), for appellant.
Suffolk County District Attorney (Edward A. Bannon of counsel), for respondent.
PRESENT:: TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ
Appeal from a judgment of the District Court of Suffolk County, First District (Richard T. Dunne, J.), rendered April 4, 2018. The judgment convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fifth degree, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a felony complaint with criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]). On October 12, 2017, after reducing the felony charge of criminal possession of stolen property in the fourth degree to criminal possession of stolen property in the fifth degree (Penal Law § 165.40), through notations made to the face of the accusatory instrument, defendant pleaded guilty to criminal possession of stolen property in the fifth degree in exchange for the promised sentence of time served and probation. Sentencing was adjourned to January 25, 2018 and the court ordered a presentence report. The report, dated January 19, 2018, indicated that, while awaiting sentence in this matter, defendant was arrested twice in December of 2017. At the conclusion of the report, the Department of Probation recommended a sentence of imprisonment for defendant "[a]s the defendant has failed at community supervision in the past and no court action thus far has deterred his criminal activity, he remains a persistent risk within the community." On January 25, 2018, the court refused to sentence defendant to probation, based upon the presentence report and defendant's subsequent arrests, and defendant withdrew his guilty plea. On, as part of a global disposition of three of defendant's pending criminal matters, defendant pleaded guilty to criminal possession of stolen property in the fifth degree, and sentence was imposed. On appeal, defendant claims that his guilty plea was not entered voluntarily, knowingly and intelligently.
"Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea... or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10" (People v Peque, 22 N.Y.3d 168, 182 [2013] [citations omitted]; see also People v Conceicao, 26 N.Y.3d 375, 381 [2015]). However, a narrow exception to the preservation requirement has been recognized where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record (see People v Williams, 27 N.Y.3d 212, 219-223 [2016]; People v Louree, 8 N.Y.3d 541, 546 [2007]). Here, since defendant was sentenced in the same proceeding in which he entered his plea of guilty, he "faced a practical inability to move to withdraw [his] plea" (Conceicao, 26 N.Y.3d at 382). Therefore, defendant's claim is reviewable under the exception to the preservation rule (see People v Sougou, 26 N.Y.3d 1052, 1054 [2015]).
Nothing defendant said or failed to say in his plea allocution negated any element of the offense to which he pleaded guilty, cast doubt on his admitted guilt or called into question the voluntariness of his plea. In view of the foregoing, contrary to defendant's contention, the court was not required to inquire into the statements made by him to the probation officers who had prepared the presentence report (see People v Ospina, 175 A.D.3d 513 [2019]; People v Zapata, 143 A.D.3d 477 [2016]; People v Appling, 94 A.D.3d 1135 [2012]; People v Kelly, 50 A.D.3d 921 [2008]; People v Pantoja, 281 A.D.2d 245 [2001]). Consequently, the record as a whole demonstrates that defendant's plea was entered into knowingly, voluntarily, and intelligently (see People v Sosa, 28 N.Y.3d 965, 966 [2016]; Conceicao, 26 N.Y.3d 375).
Accordingly, the judgment of conviction is affirmed.
RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur.