Opinion
108506
01-10-2019
The PEOPLE of the State of New York, Respondent, v. Iris VASQUEZ, Also Known as Tutti, Banga and Ne Ne, Appellant.
Brian M. Callahan, Albany, for appellant, and appellant pro se. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Brian M. Callahan, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J.Defendant pleaded guilty to criminal possession of a weapon in the second degree in full satisfaction of a seven-count indictment and other pending charges and waived her right to appeal. County Court sentenced defendant to seven years in prison, to be followed by five years of postrelease supervision. Defendant now appeals. We affirm. Defendant's contention that her plea was not knowing, intelligent and voluntary inasmuch as County Court failed to advise her that she would be giving up her constitutional privilege against self-incrimination by pleading guilty survives her appeal waiver (see People v. Bond, 146 A.D.3d 1155, 1156, 44 N.Y.S.3d 776 [2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ; People v. Giammichele, 144 A.D.3d 1320, 1320, 40 N.Y.S.3d 794 [2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ), but is unpreserved for our review as there is no indication in the record that she made an appropriate postallocution motion (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. Duvall, 157 A.D.3d 1060, 1060–1061, 66 N.Y.S.3d 754 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ; People v. Bond, 146 A.D.3d at 1156, 44 N.Y.S.3d 776 ). Further, defendant did not make any statements during the plea colloquy that cast doubt upon her guilt or otherwise called into question the voluntariness of her plea so as to trigger the narrow exception to the preservation requirement (see People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). In any event, County Court adequately advised defendant of the constitutional rights she was forfeiting by pleading guilty and she expressed her understanding thereof (see People v. Haenelt, 161 A.D.3d 1489, 1490, 77 N.Y.S.3d 770 [2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ; People v. Duvall, 157 A.D.3d at 1061, 66 N.Y.S.3d 754 ).
Turning to defendant's pro se supplemental brief, her contention that there was an unreasonable delay in her sentencing pursuant to CPL 380.30 survives her appeal waiver (see People v. Campbell, 97 N.Y.2d 532, 534–535, 743 N.Y.S.2d 396, 769 N.E.2d 1288 [2002] ), but is unpreserved for our review insofar as defendant did not object to the delay in County Court or move to dismiss the indictment on that ground (see People v. Kerrick, 136 A.D.3d 1099, 1100, 25 N.Y.S.3d 392 [2016] ; People v. Gilbert, 133 A.D.3d 928, 929, 18 N.Y.S.3d 795 [2015] ; People v. Brooks, 118 A.D.3d 1123, 1124, 987 N.Y.S.2d 249 [2014], lv denied 24 N.Y.3d 959, 996 N.Y.S.2d 218, 20 N.E.3d 998 [2014] ). Defendant's claim of ineffective assistance of counsel, to the extent that it impacts the voluntariness of the plea, is also unpreserved in the apparent absence of an appropriate postallocution motion (see People v. Duggins, 161 A.D.3d 1445, 1446, 77 N.Y.S.3d 765 [2018], lv denied 32 NY3d 937, 109 N.E.3d 1163 [2018] ; People v. Jackson, 159 A.D.3d 1276, 1277, 73 N.Y.S.3d 676 [2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ). Defendant's challenge to a misdemeanor conviction for assault in the third degree, stemming from an altercation in jail while she was awaiting sentencing on this matter, is not subject to review on this appeal as her notice of appeal is specifically limited to her conviction for criminal possession of a weapon in the second degree (see People v. Ferraro, 29 A.D.2d 595, 595, 285 N.Y.S.2d 350 [1967], affd 24 N.Y.2d 957, 302 N.Y.S.2d 589, 250 N.E.2d 74 [1969] ). Defendant's remaining arguments have been examined and found to be without merit.
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.