Opinion
573 KA 16–01087
06-15-2018
The PEOPLE of the State of New York, Respondent, v. Jose JUARBE, Defendant–appellant.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF COUNSEL), FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF COUNSEL), FOR DEFENDANT–APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND WINSLOW, 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 assault in the second degree ( Penal Law § 120.05[3] ), defendant contends that his waiver of the right to appeal was not valid, and that his plea was not knowing, voluntary, and intelligent. Regardless of whether defendant's waiver of the right to appeal is valid, it does not preclude our review of his challenge to the validity of the plea because defendant's contention implicates the voluntariness of the plea (see People v. Copes, 145 A.D.3d 1639, 1639, 44 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 1182, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017] ). We further conclude that defendant's challenge to the voluntariness of his plea is not preserved for our review inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Rosado, 70 A.D.3d 1315, 1315–1316, 894 N.Y.S.2d 703 [4th Dept. 2010], lv denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 [2010] ). In any event, defendant's contention lacks merit. "Although it is well settled that ‘[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if he [or she] decides to proceed to trial’ ..., the statements of the court at issue ... ‘amount to a description of the range of the potential sentences’ rather than impermissible coercion ... ‘The fact that defendant may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced’ " ( People v. Boyde, 71 A.D.3d 1442, 1443, 897 N.Y.S.2d 570 [4th Dept. 2010], lv denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219 [2010] ; see People v. Obbagy, 147 A.D.3d 1296, 1297, 48 N.Y.S.3d 558 [4th Dept. 2017], lv denied 29 N.Y.3d 1035, 62 N.Y.S.3d 304, 84 N.E.3d 976 [2017] ).