Opinion
475 KA 19-01691
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Keir A. GROSSE RHODE, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 assault in the first degree ( Penal Law § 120.10 [1] ) and leaving the scene of an incident resulting in serious physical injury without reporting ( Vehicle and Traffic Law § 600 [2] [a], [c] [i] ). Defendant contends that his purported monosyllabic responses to County Court's inquiries during the plea colloquy, coupled with concerns about his mental health, demonstrate that his plea was not voluntarily, knowingly, and intelligently entered. Preliminarily, we agree with defendant that, contrary to the People's assertion, an exception to the preservation requirement applies here inasmuch as defendant "could not have brought a CPL 220.60 (3) plea withdrawal motion ... because the plea and sentence occurred during the same proceeding[, and] he could not have filed a CPL 440.10 motion because the [alleged] error in th[is] case[ is] ‘clear from the face of the ... record’ " ( People v. Tyrell , 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; see People v. Conceicao , 26 N.Y.3d 375, 381-382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Sougou , 26 N.Y.3d 1052, 1054, 23 N.Y.S.3d 121, 44 N.E.3d 196 [2015] ). We nonetheless conclude that defendant's contention lacks merit. The court "properly relied upon the reports of two mental health professionals who found that defendant was competent" ( People v. Moore , 57 A.D.3d 1432, 1432-1433, 869 N.Y.S.2d 813 [4th Dept. 2008], lv denied 12 N.Y.3d 785, 879 N.Y.S.2d 62, 906 N.E.2d 1096 [2009] ; see People v. Morris , 183 A.D.3d 1254, 1255, 123 N.Y.S.3d 784 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 838, 151 N.E.3d 519 [2020] ). In addition, "the record of the plea colloquy establishes that defendant possessed a rational and factual understanding of the proceeding ... [and] that defendant's guilty plea was knowingly, intelligently and voluntarily entered with the aid of counsel and after the court had fully advised him of the consequences of his plea" ( Moore , 57 A.D.3d at 1433, 869 N.Y.S.2d 813 [internal quotation marks omitted]). Contrary to defendant's further contention, "even though some of [his] responses to the court's inquiries were monosyllabic," his plea is not rendered invalid on that basis ( People v. Lewis , 114 A.D.3d 1310, 1311, 980 N.Y.S.2d 231 [4th Dept. 2014], lv denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; see People v. Hunt , 188 A.D.3d 1648, 1649, 132 N.Y.S.3d 384 [4th Dept. 2020], lv denied 36 N.Y.3d 1097, 36 N.Y.3d 1097, ––– N.E.3d –––– [Mar. 10, 2021] ).
Next, as defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 564-567, 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, 513 [2020]; People v. Parker , 189 A.D.3d 2065, 2065-2066, 138 N.Y.S.3d 758 [4th Dept. 2020] ; Hunt , 188 A.D.3d at 1648-1649, 132 N.Y.S.3d 384 ) and thus does not preclude our review of defendant's challenge to the severity of his sentence (see People v. Alls , 187 A.D.3d 1515, 1515, 129 N.Y.S.3d 881 [4th Dept. 2020] ). We nevertheless conclude that the negotiated sentence is not unduly harsh or severe.