Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. Latasha D. BRIGGS, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, and SCONIERS, JJ.
MEMORANDUM:
On appeal from a judgment convicting her upon her plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), defendant contends that her plea was not knowingly, voluntarily, and intelligently entered. According to defendant, her equivocal responses during the plea colloquy negated her intent to sell, which is an essential element of the crime to which she pleaded guilty, and the court failed to conduct the requisite further inquiry to ensure that the plea was knowing, voluntary and intelligent. We note at the outset that defendant's waiver of the right to appeal is invalid and thus does not encompass her contention ( see People v. McCoy, 107 A.D.3d 1454, 1454–1455, 967 N.Y.S.2d 309,lv. denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553). Although the record establishes that defendant executed a written waiver and County Court ensured that defendant had signed that written waiver voluntarily, the court's “failure to make any inquiry on the record as to whether the defendant understood the implication of the appellate rights [s]he was waiving renders the waiver invalid” ( People v. Grant, 83 A.D.3d 862, 862–863, 921 N.Y.S.2d 285,lv. denied17 N.Y.3d 795, 929 N.Y.S.2d 103, 952 N.E.2d 1098;see McCoy, 107 A.D.3d at 1454, 967 N.Y.S.2d 309;see generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645). Nevertheless, defendant failed to preserve her contention for our review by moving to withdraw the plea or to vacate the judgment of conviction ( see People v. Theall, 109 A.D.3d 1107, 1108, 971 N.Y.S.2d 753). This case does not fall within the rare exception to the preservation rule set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 because, “ ‘[a]lthough the initial statements of defendant during the factual allocution may have negated the essential element of h[er] intent to [sell], h [er] further statements removed any doubt regarding that intent’ ” ( Theall, 109 A.D.3d at 1108, 971 N.Y.S.2d 753). In any event, the record establishes that the court conducted a “ ‘further inquiry to ensure that defendant understood the nature of the charge and that the plea was intelligently entered’ ” ( id.).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.