Opinion
2021-07424
12-23-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOHN M. GRABOWSKI, ALSO KNOWN AS JOHN MICHAEL GRABOWSKI, ALSO KNOWN AS JOHN GRABOWSKI, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered April 26, 2019. The judgment convicted defendant, upon a plea of guilty, of rape in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his Alford plea of guilty, of rape in the first degree (Penal Law § 130.35 [4]). We agree with defendant that his "waiver of the right to appeal was invalid, because [it] encompassed post-conviction motions" (People v Suarez-Montoya, 183 A.D.3d 765, 765 [2d Dept 2020]; see People v Byrd, 181 A.D.3d 1183, 1184 [4th Dept 2020], lv denied 35 N.Y.3d 1025 [2020]). The sentence, however, is not unduly harsh or severe. Defendant's contention that County Court improperly penalized him at sentencing for taking an Alford plea is unpreserved for appellate review (see generally People v Hurley, 75 N.Y.2d 887, 888 [1990]). Finally, the certificate of conviction incorrectly states that defendant pleaded guilty on April 25, 2019, and it must therefore be amended to reflect the correct date of March 25, 2019.