Opinion
223 KA 16–00130
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Cishahayo ALBERT, Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JASON A. MACBRIDE OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JASON A. MACBRIDE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND NEMOYER, 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 an Alford plea of rape in the third degree ( Penal Law § 130.25[3] ). Defendant contends that County Court erred in accepting his Alford plea because the record does not contain the requisite strong evidence of guilt, establish that the plea was the product of a voluntary and rational choice, or demonstrate his true understanding of the nature of the Alford plea and its consequences. Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve those contentions for our review (see People v. Dixon, 147 A.D.3d 1518, 1518–1519, 47 N.Y.S.3d 617 [4th Dept. 2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ; People v. Elliott, 107 A.D.3d 1466, 1466, 965 N.Y.S.2d 899 [4th Dept. 2013], lv denied 22 N.Y.3d 996, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ). Defendant further contends that preservation is not required because the plea was not knowingly, voluntarily and intelligently entered inasmuch as he made statements during the plea proceeding that were inconsistent with guilt and the court failed to conduct the requisite "further inquiry" ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We conclude that preservation is required because the "record indicated strong evidence of guilt and the court was not required to do more than it did to ensure that defendant voluntarily entered the plea" ( People v. Couser, 28 N.Y.3d 368, 379, 45 N.Y.S.3d 301, 68 N.E.3d 26 [2016] ). We decline to exercise our power to review defendant's contentions as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ; Dixon, 147 A.D.3d at 1519, 47 N.Y.S.3d 617). Defendant also failed to preserve for our review his further contention that he was denied his due process right to an interpreter by virtue of the interpreter's alleged translation errors (see CPL 470.05 [2] ; People v. Melendez, 8 N.Y.3d 886, 887, 832 N.Y.S.2d 893, 865 N.E.2d 1 [2007] ; People v. Duenas, 120 A.D.2d 978, 978–979, 502 N.Y.S.2d 873 [4th Dept. 1986] ; see also People v. Wong, 256 A.D.2d 724, 724–725, 682 N.Y.S.2d 689 [3d Dept. 1998], lv denied 93 N.Y.2d 903, 689 N.Y.S.2d 715, 711 N.E.2d 991 [1999] ), and we likewise decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).