Opinion
1095 KA 15–01597
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Michael SANTIAGO, 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: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, 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 criminal sexual act in the first degree ( Penal Law § 130.50 [4 ] ), defendant contends that the waiver of the right to appeal is invalid. We reject that contention and conclude that defendant validly waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Although the valid waiver of the right to appeal forecloses our review of defendant's contentions that the sentence is unduly harsh and severe and constitutes cruel and unusual punishment (see People v. Marshall, 144 A.D.3d 1544, 1545, 41 N.Y.S.3d 337 [4th Dept. 2016] ), it "does not encompass [defendant's] contention that the plea was not knowingly, intelligently or voluntarily entered" ( People v. Williams, 91 A.D.3d 1299, 1299, 937 N.Y.S.2d 506 [4th Dept. 2012] ). We thus address the merits of that contention.
Defendant contends that the plea was not knowingly, intelligently or voluntarily entered because of "his confusion concerning the ramifications of his guilty plea." That contention is preserved for our review by defendant's pro se oral motion to withdraw the plea (see CPL 220.60[3] ; People v. Gravino, 62 A.D.3d 1259, 1259, 877 N.Y.S.2d 725 [4th Dept. 2009], affd 14 N.Y.3d 546, 902 N.Y.S.2d 851, 928 N.E.2d 1048 [2010] ), which was directed to the same issue that is raised on appeal (cf. People v. Gibson, 140 A.D.3d 1786, 1787, 32 N.Y.S.3d 413 [4th Dept. 2016], lv denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 [2016] ; People v. Johnson, 128 A.D.3d 1539, 1539, 7 N.Y.S.3d 925 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ). We conclude, however, that the contention lacks merit. At the time of the plea, the court "expressly reviewed the terms of the plea agreement, including the agreed-upon sentence, [and] confirmed that defendant agreed to such terms" ( People v. Miles, 138 A.D.3d 1350, 1350, 30 N.Y.S.3d 390 [3d Dept. 2016], lv denied 28 N.Y.3d 934, 40 N.Y.S.3d 362, 63 N.E.3d 82 [2016] ). Thus, "the record ... belies defendant's contention that the plea was not voluntary or intelligent because there was confusion regarding the appropriate sentence, inasmuch as ‘the record reflects that defendant was aware of the sentence to be imposed’ " ( People v. Brown, 162 A.D.3d 1568, 1569, 78 N.Y.S.3d 848 [4th Dept. 2018], lv denied 32 N.Y.3d 935, 84 N.Y.S.3d 862, 109 N.E.3d 1162 [2018] ).