Opinion
2019–11933 Ind. No. 952/19
09-13-2023
The PEOPLE, etc., respondent, v. Roberto A. GAYLE, appellant.
Arza Feldman, Manhasset, NY (Steven A. Feldman of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Pilar ORourke, Glenn Green, and Marion Tang of counsel), for respondent.
Arza Feldman, Manhasset, NY (Steven A. Feldman of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Pilar ORourke, Glenn Green, and Marion Tang of counsel), for respondent.
BETSY BARROS, J.P., PAUL WOOTEN, WILLIAM G. FORD, BARRY E. WARHIT, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (Anthony Senft, J.), rendered September 26, 2019, convicting him of strangulation in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ).
The defendant's waiver of his right to appeal does not foreclose appellate review of his contention that the County Court should have held a hearing to determine whether he violated a condition of his plea agreement (see People v. Wynne, 206 A.D.3d 1013, 1013, 168 N.Y.S.3d 877 ; People v. Knee, 174 A.D.3d 646, 646, 101 N.Y.S.3d 866 ). However, the defendant failed to preserve this issue for appellate review, since he did not request a hearing or move to withdraw his plea of guilty (see People v. Goode–Ford, 205 A.D.3d 1051, 1051, 166 N.Y.S.3d 904 ; People v. Shealy, 195 A.D.3d 1047, 1048, 146 N.Y.S.3d 797 ). In any event, since the defendant did not deny that he committed the crimes for which he was arrested or otherwise challenge the validity of the arrests, the court was not obligated to conduct a hearing (see People v. Billups, 63 A.D.3d 750, 750, 881 N.Y.S.2d 445 ; People v. Huggins, 45 A.D.3d 1380, 1380, 845 N.Y.S.2d 609 ).
The defendant's waiver of his right to appeal does not foreclose appellate review of his contention that an order of protection issued at the time of sentencing failed to account for his jail-time credit (see People v. Clark, 155 A.D.3d 1184, 1185, 63 N.Y.S.3d 252 ; People v. DeFazio, 105 A.D.3d 1438, 1439, 963 N.Y.S.2d 497 ). However, the contention is unpreserved for appellate review due to the defendant's failure to raise it at sentencing (see People v. Bolden, 193 A.D.3d 1369, 1369, 143 N.Y.S.3d 272 ; People v. Gardner, 129 A.D.3d 1386, 1387, 12 N.Y.S.3d 353 ). In any event, since the County Court set the order of protection to expire eight years from the date of sentencing, jail-time credit was irrelevant (see CPL 530.13[4][A] ; People v. Bolden, 193 A.D.3d at 1369–1370, 143 N.Y.S.3d 272 ; People v. Kapasakis, 179 A.D.3d 435, 435–436, 117 N.Y.S.3d 242 ; People v. Bryant, 132 A.D.3d 502, 502, 17 N.Y.S.3d 643 ). Contrary to the defendant's contention, the duration of the order of protection was disclosed to the defendant during sentencing. In any event, the court was not required to make an oral pronouncement at sentencing of the duration of the order (see People v. Bryant, 132 A.D.3d at 502, 17 N.Y.S.3d 643 ). The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent survives the appeal waiver (see People v. Steinard, 210 A.D.3d 1202, 1202, 178 N.Y.S.3d 262 ). However, the contention is unpreserved for appellate review because the defendant failed to file a post-allocution motion to withdraw his plea despite having an opportunity to do so before sentencing (see People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Lamery, 193 A.D.3d 977, 978, 142 N.Y.S.3d 851 ). Moreover, the defendant did not make any statements during the plea colloquy that were inconsistent with his guilt, that negated an essential element of the charged crime, or that otherwise called into question the voluntariness of his plea and, therefore, the narrow exception to the preservation requirement does not apply (see People v. Williams, 27 N.Y.3d at 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Morris, 200 A.D.3d 995, 996, 158 N.Y.S.3d 253 ). In any event, the defendant's contention is without merit (see People v. Lamery, 193 A.D.3d 977, 142 N.Y.S.3d 851 ).
The defendant's contention that the County Court was required to inform him of the possibility of GPS monitoring as a consequence of his conviction survives a valid waiver of the right to appeal (see People v. Blanco–Ortiz, 196 A.D.3d 1153, 1154, 150 N.Y.S.3d 206 ; People v. Romanelli, 188 A.D.3d 1354, 1355, 134 N.Y.S.3d 118 ). However, the contention is unpreserved for appellate review because at sentencing the defendant failed to protest or seek to withdraw his plea of guilty (see People v. Bush, 38 N.Y.3d 66, 68, 167 N.Y.S.3d 435, 187 N.E.3d 1047 ). In any event, the defendant's contention is without merit since conditions of probation need not be mentioned during the plea allocution (see People v. Belliard, 20 N.Y.3d 381, 386, 961 N.Y.S.2d 820, 985 N.E.2d 415 ; People v. Maggio, 210 A.D.3d 798, 178 N.Y.S.3d 153 ; People v. Bermudez, 171 A.D.3d 777, 778, 95 N.Y.S.3d 839 ).
BARROS, J.P., WOOTEN, FORD and WARHIT, JJ., concur.