Opinion
888 KA 18-02406
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Dean A. JUDY, II, Defendant-Appellant.
KIMBERLY J. CZAPRANSKI, SCOTTSVILLE, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
KIMBERLY J. CZAPRANSKI, SCOTTSVILLE, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, 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 criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that his waiver of the right to appeal is invalid and that his plea was not voluntarily entered. Because defendant's challenge to the voluntariness of his plea would survive even a valid waiver of the right to appeal (see People v. Burney , 41 A.D.3d 1221, 1221, 838 N.Y.S.2d 278 [4th Dept. 2007], lv denied 9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199 [2007] ), we need not address the validity of that waiver. We note, however that the better practice is for Supreme Court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( People v. Thomas , 34 N.Y.3d 545, 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020], citing NY Model Colloquies, Waiver of Right to Appeal). Defendant's contention that his plea was not voluntarily entered is not preserved for our review "inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction" ( People v. Mobayed , 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; see People v. Jones , 175 A.D.3d 1845, 1845-1846, 109 N.Y.S.3d 774 [4th Dept. 2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 132, 139 N.E.3d 790 [2019] ; People v. Yates , 173 A.D.3d 1849, 1849-1850, 103 N.Y.S.3d 728 [4th Dept. 2019] ). In any event, we reject that contention. We conclude that defendant's "plea was not rendered involuntary by the court's failure to advise him that as a consequence of [the] plea he may receive an enhanced sentence for any crime that he may commit in the future" ( People v. Taylor , 60 A.D.3d 708, 709, 874 N.Y.S.2d 531 [2d Dept. 2009], lv denied 12 N.Y.3d 860, 881 N.Y.S.2d 671, 909 N.E.2d 594 [2009] ). In addition, contrary to defendant's contention, the record establishes that he understood the nature and consequences of the plea, and that he agreed to plead guilty to criminal possession of a weapon in the second degree in full satisfaction of the charges against him (cf. People v. Hector , 172 A.D.3d 1913, 1914, 97 N.Y.S.3d 912 [4th Dept. 2019] ; see generally People v. Alicea , 148 A.D.3d 1662, 1663, 51 N.Y.S.3d 744 [4th Dept. 2017], lv denied 29 N.Y.3d 1122, 64 N.Y.S.3d 672, 86 N.E.3d 564 [2017]). Finally, "[t]he fact that defendant was required to accept or reject the plea offer within a short time period does not amount to coercion" that would render the plea involuntary ( People v. Russell , 55 A.D.3d 1314, 1315, 864 N.Y.S.2d 587 [4th Dept. 2008], lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 [2009] [internal quotation marks omitted]; see People v. Freeman , 159 A.D.3d 1337, 1338, 73 N.Y.S.3d 296 [4th Dept. 2018], lv denied 31 N.Y.3d 1147, 83 N.Y.S.3d 429, 108 N.E.3d 503 [2018] ).