Opinion
01-19-2017
The PEOPLE of the State of New York, Respondent, v. Kenneth BOND, Appellant.
Brian M. Callahan, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Brian M. Callahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, DEVINE and MULVEY, JJ.
ROSE, J.Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered August 7, 2014, convicting defendant upon his plea of guilty of the crime of robbery in the third degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty to robbery in the third degree as charged in a superior court information. He also orally waived his right to appeal and signed a written waiver of appeal in open court. Defendant was then sentenced, as a second felony offender, to a prison term of 3 to 6 years, and he now appeals.
Defendant contends that his factual recitation during the plea colloquy did not establish the element of force required for robbery in the third degree (see Penal Law § 160.05 ). Inasmuch as this argument constitutes a challenge to the factual sufficiency of the plea, "it is precluded by [defendant's] valid appeal waiver, which he does not take issue with on appeal" (People v. Blair, 140 A.D.3d 1478, 1479, 35 N.Y.S.3d 508 [2016], lv. denied 28 N.Y.3d 927, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] ; see People v. Jackson, 128 A.D.3d 1279, 1280, 9 N.Y.S.3d 739 [2015], lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ; People v. Devault, 124 A.D.3d 1140, 1140–1141, 1 N.Y.S.3d 579 [2015], lv. denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ).
Defendant also contends that his plea was not knowing, voluntary and intelligent because County Court failed to advise him that he would be giving up his constitutional privilege against self-incrimination by pleading guilty (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; see also Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ). Although this claim survives defendant's valid appeal waiver (see People v. Giammichele, 144 A.D.3d 1320, 1320, 40 N.Y.S.3d 794 [2016] ; People v. Klinger, 129 A.D.3d 1115, 1116, 10 N.Y.S.3d 366 [2015] ), it is unpreserved for our review as there is no indication in the record that he made an appropriate postallocution motion, despite having ample time to do so prior to sentencing (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Toledo, 144 A.D.3d 1332, 1333, 40 N.Y.S.3d 680 [2016] ; People v. Giammichele, 144 A.D.3d at 1320, 40 N.Y.S.3d 794; People v. Sommers, 140 A.D.3d 1537, 1538, 33 N.Y.S.3d 789 [2016], lv. denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ). In any event, we decline to take corrective action in the interest of justice inasmuch as the record confirms that County Court adequately advised defendant of the constitutional rights he was forfeiting by pleading guilty. Furthermore, defendant expressed his understanding of those rights and he acknowledged his familiarity with them based upon his prior experience entering guilty pleas (see People v. Sommers, 140 A.D.3d at 1538, 33 N.Y.S.3d 789; People v. Walker, 135 A.D.3d 1244, 1245, 23 N.Y.S.3d 485 [2016] ; People v. Proper, 133 A.D.3d 918, 919, 18 N.Y.S.3d 793 [2015] ; compare People v. Lowe, 133 A.D.3d 1099, 1101, 21 N.Y.S.3d 399 [2015] ). Thus, we are satisfied that there is "an affirmative showing on the record that the defendant waived his constitutional rights" (People v. Tyrell, 22 N.Y.3d at 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [internal quotation marks and citation omitted] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, DEVINE and MULVEY, JJ., concur.