Opinion
1021 KA 17–01347
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Jonathan JIMENEZ, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN P. KULESUS OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN P. KULESUS OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted arson in the second degree ( Penal Law §§ 110.00, 150.15 ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. The colloquy established that defendant knowingly, intelligently, and voluntarily waived his right to appeal (see generally People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Ripley , 94 A.D.3d 1554, 1554, 942 N.Y.S.2d 919 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ; People v. Richards , 93 A.D.3d 1240, 1240, 940 N.Y.S.2d 431 [4th Dept. 2012], lv denied 20 N.Y.3d 1014, 960 N.Y.S.2d 357, 984 N.E.2d 332 [2013] ), and the record belies his contention that, although aided by an interpreter, he was unable to understand the proceedings (see generally People v. Brown , 151 A.D.3d 1951, 1952, 59 N.Y.S.3d 227 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ). Defendant's valid waiver of the right to appeal forecloses his challenge to the severity of his sentence (see People v. Carr , 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] ; People v. Bryan , 78 A.D.3d 1692, 1693, 910 N.Y.S.2d 749 [4th Dept. 2010], lv denied 16 N.Y.3d 829, 921 N.Y.S.2d 193, 946 N.E.2d 181 [2011] ).
Defendant failed to preserve for our review his further contention that his plea was not voluntarily, knowingly, or intelligently entered inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction pursuant to CPL article 440 (see People v. Sheppard , 149 A.D.3d 1569, 1569, 53 N.Y.S.3d 443 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ; People v. Nieves , 299 A.D.2d 888, 888–889, 750 N.Y.S.2d 677 [4th Dept. 2002], lv denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286 [2003] ). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation doctrine inasmuch as defendant made no statement during the plea colloquy or at sentencing that "cast[ ] significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the plea" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; see People v. Stutzman , 158 A.D.3d 1294, 1295, 71 N.Y.S.3d 784 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ). To the extent that defendant concedes that he did not make such a statement and instead contends that County Court erred in failing sua sponte to inquire into a possible defense to the crime, that contention is "actually a challenge to the factual sufficiency of the plea allocution, and it is well settled that defendant's valid waiver of the right to appeal encompasses that challenge" ( People v. Arney , 120 A.D.3d 949, 949–950, 990 N.Y.S.2d 752 [4th Dept. 2014] ; see People v. Zimmerman , 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] ).