Opinion
332 KA 19-02365
04-29-2022
The PEOPLE of the State of New York, Respondent, v. Ryan BROWN, Defendant-Appellant. (Appeal No. 2.)
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, 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 his plea of guilty, of hindering prosecution in the first degree ( Penal Law § 205.65 ). We affirm.
Defendant's challenges to the voluntariness of his guilty plea are unpreserved for appellate review (see People v. Rodriguez , 199 A.D.3d 1458, 1458-1459, 154 N.Y.S.3d 609 [4th Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 712, 181 N.E.3d 1140 [2022] ), and the narrow 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 (1988) does not apply in this case because defendant said "[n]othing ... during the plea colloquy itself" that negated an element of the pleaded-to crime or otherwise called into doubt the voluntariness of his plea ( People v. Mobayed , 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; see also People v. Romanowski , 196 A.D.3d 1081, 1082, 149 N.Y.S.3d 740 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 432, 175 N.E.3d 457 [2021] ). Contrary to defendant's assertion, which finds support in a line of Third Department cases that we declined to follow in Mobayed (see e.g. People v. Gresham , 151 A.D.3d 1175, 1178, 57 N.Y.S.3d 532 [3d Dept. 2017] ), we reiterate that a trial court has no duty, in the absence of a motion to withdraw a guilty plea, to conduct a further inquiry concerning the plea's voluntariness "based upon comments made by [the] defendant during ... sentencing" ( Mobayed , 158 A.D.3d at 1223, 70 N.Y.S.3d 267 ; see People v. Vogt , 150 A.D.3d 1704, 1705, 54 N.Y.S.3d 259 [4th Dept. 2017] ; People v. Garbarini , 64 A.D.3d 1179, 1179, 882 N.Y.S.2d 785 [4th Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ; People v. Sands , 45 A.D.3d 414, 415, 845 N.Y.S.2d 326 [1st Dept. 2007], lv denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ).
As the Court of Appeals emphasized in Lopez itself, the trial court's duty of further inquiry is triggered only when a defendant makes a negating or undermining statement before the trial court "accepts" his or her guilty plea ( 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Indeed, the entire Lopez rule is framed around the trial court's "duty" to "not accept " a negated guilty plea unless the defendant, during a further inquiry, provides sufficient assurances of the plea's voluntariness ( id. [emphasis added]). The Lopez rule thus cannot be applied to statements made by the defendant after the plea's valid acceptance, and to our knowledge the Court of Appeals has never extended Lopez to require the sua sponte reopening of a plea colloquy based upon the defendant's post-plea statements. Contrary to the Third Department's position (see e.g. Gresham , 151 A.D.3d at 1178, 57 N.Y.S.3d 532 ), the Court of Appeals did not expand the Lopez rule to such post-plea statements in People v. Pastor, 28 N.Y.3d 1089, 45 N.Y.S.3d 317, 68 N.E.3d 42 (2016) ; rather, the Court of Appeals’ memorandum in that case noted that the defendant "said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification defense" ( id. at 1090-1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 ), and it declined to apply the Lopez rule under those circumstances. Pastor never explicitly held that the Lopez rule would have been triggered had the defendant said something at sentencing that negated an element of the crime to which he had already pleaded guilty, and the Court of Appeals’ subsequent characterization of Pastor and related caselaw in People v. Delorbe, 35 N.Y.3d 112, 119-121, 125 N.Y.S.3d 327, 149 N.E.3d 20 (2020) further confirms our conclusion that Pastor did not implicitly extend the Lopez rule to a defendant's post-plea statements. Indeed, the Third Department's interpretation of Pastor incentivizes defendants to forgo formal plea-withdrawal motions in favor of oblique negating commentary at sentencing; after all, since the Lopez rule forbids the acceptance and approval of a negated guilty plea without sufficient follow-up assurances from the defendant personally (see 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), applying that rule to post-plea commentary would effectively afford every defendant the unfettered option to withdraw his or her guilty plea at sentencing simply by negating an element of the pleaded-to crime and thereafter refusing to offer the follow-up assurances contemplated by Lopez . We cannot countenance such a procedure; "the law favors the finality of guilty pleas and they are not to be undone lightly or at the whim of the defendant" ( People v. White , 137 A.D.2d 859, 859, 525 N.Y.S.2d 323 [2d Dept. 1988] ).
In any event, defendant said nothing at the sentencing hearing that negated an element of the crime to which he previously pleaded guilty (compare Penal Law § 205.65, with § 20.00; see generally People v. Fisher , 28 N.Y.3d 717, 722-725, 49 N.Y.S.3d 344, 71 N.E.3d 932 [2017] ). Moreover, defendant's substantive challenges to the voluntariness of his guilty plea are without merit (see People v. Alexander , 19 N.Y.3d 203, 219, 947 N.Y.S.2d 386, 970 N.E.2d 409 [2012] ; People v. Adams , 201 A.D.3d 1311, 1313, 161 N.Y.S.3d 613 [4th Dept. 2022] ; People v. Rathburn , 178 A.D.3d 1421, 1422, 112 N.Y.S.3d 654 [4th Dept. 2019], lv denied 35 N.Y.3d 944, 124 N.Y.S.3d 282, 147 N.E.3d 552 [2020] ). Finally, although defendant correctly contends that his waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 562-563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ), we conclude that his sentence is not unduly harsh or severe.