Opinion
2019–08574 Ind. No. 19–00052
04-14-2021
The PEOPLE, etc., respondent, v. Brandon Joel BROWN, appellant.
Philip H. Schnabel, Chester, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Edward D. Saslaw of counsel), for respondent.
Philip H. Schnabel, Chester, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (Edward D. Saslaw of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered June 17, 2019, convicting him of robbery in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The County Court mischaracterized the nature of the right to appeal by incorrectly describing the scope of appellate review, as it stated that the defendant's sentence and conviction would be final (see People v. Thomas, 34 N.Y.3d 545, 563–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Accordingly, the purported waiver does not preclude appellate review of the defendant's present contentions.
The defendant's challenges to the validity of his plea of guilty are unpreserved for appellate review as he failed to move to withdraw his plea on these grounds before the County Court (see CPL 470.05[2] ; People v. Perez, 160 A.D.3d 901, 901, 75 N.Y.S.3d 95 ). In any event, the record as a whole affirmatively demonstrates that the defendant entered his plea of guilty knowingly, voluntarily, and intelligently (see People v. Perez, 160 A.D.3d at 901, 75 N.Y.S.3d 95 ; People v. Thomas, 150 A.D.3d 770, 770–771, 53 N.Y.S.3d 195 ).
The defendant waived his contentions that the People failed to notify him before the case was presented to the grand jury and that he was denied the right to testify before the grand jury by failing to move to dismiss the indictment on these grounds within five days after arraignment thereon (see CPL 190.50[5][c] ; People v. Reeves, 180 A.D.3d 936, 938, 116 N.Y.S.3d 569 ; People v. McTerrell, 174 A.D.3d 648, 649, 101 N.Y.S.3d 868 ).
DILLON, J.P., AUSTIN, BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.