Opinion
971 KA 18-01464
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Joseph J. PATERNOSTRO, III, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Erie County Court ( James F. Bargnesi, J.), rendered January 25, 2018. The judgment convicted defendant upon his plea of guilty of attempted burglary in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the first degree ( Penal Law §§ 110.00, 140.30[2] ). Although defendant's challenge to the voluntariness of his plea would survive even a valid waiver of the right to appeal (see People v. Thomas , 34 N.Y.3d 545, 558, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– US ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Seaberg , 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), "[b]y failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the plea was not voluntarily entered" ( People v. Garcia-Cruz , 138 A.D.3d 1414, 1414-1415, 30 N.Y.S.3d 427 [4th Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; see also People v. Lopez , 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Contrary to defendant's contention, we conclude that this case does not fall within the rare exception to the preservation requirement (see People v. Hopper , 153 A.D.3d 1045, 1046-1047, 61 N.Y.S.3d 176 [3d Dept. 2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ; People v. Matos , 27 A.D.3d 485, 486, 812 N.Y.S.2d 577 [2d Dept. 2006] ; People v. Farnham [appeal No. 1], 254 A.D.2d 767, 767, 678 N.Y.S.2d 760 [4th Dept. 1998], lv denied 92 N.Y.2d 949, 681 N.Y.S.2d 479, 704 N.E.2d 232 [1998] ; see generally Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).