Opinion
974 KA 15–01425
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Ian GULBIN, Defendant–Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT–APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, 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 murder in the second degree ( Penal Law § 125.25 [4 ] ). The conviction arises from defendant's brutal and unconscionable conduct in beating to death a 13–month–old infant entrusted to his care. We affirm.We conclude that defendant validly waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Defendant's valid waiver of the right to appeal forecloses his statutory and constitutional challenges to the severity of his sentence (see People v. Marshall, 144 A.D.3d 1544, 1545, 41 N.Y.S.3d 337 [4th Dept. 2016] ). Even assuming, arguendo, that defendant's waiver of his right to appeal does not foreclose his further contention that County Court should have recused itself at sentencing (see People v. Walker, 100 A.D.3d 1522, 1523, 953 N.Y.S.2d 917 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ), that contention is nevertheless unpreserved for our review (see People v. Sparks, 160 A.D.3d 1279, 1280, 74 N.Y.S.3d 679 [3d Dept. 2018] ), and we decline to address it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). Defendant's further contention that the court impermissibly enhanced his sentence in retaliation for his motion to withdraw the plea survives his appeal waiver (see People v. Weinstock, 129 A.D.3d 1663, 1664, 11 N.Y.S.3d 782 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ), but that contention is also unpreserved for our review (see People v. Womack, 151 A.D.3d 1754, 1754, 57 N.Y.S.3d 301 [4th Dept. 2017], lv denied 29 N.Y.3d 1136, 64 N.Y.S.3d 686, 86 N.E.3d 578 [2017] ), and we likewise decline to address it as a matter of discretion in the interest of justice. Defendant's remaining contention, i.e., that his allocution failed to affirmatively establish each element of the crime, is not a recognized ground for vacating a guilty plea (see People v. Goldstein, 12 N.Y.3d 295, 300–301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009] ; People v. Madden, 148 A.D.3d 1576, 1578, 52 N.Y.S.3d 176 [4th Dept. 2017], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017] ).
Finally, we note that the certificate of conviction incorrectly states that defendant was sentenced on October 30, 2015, and it must therefore be amended to reflect the correct sentencing date of October 30, 2014 (see generally People v. Young, 74 A.D.3d 1864, 1865, 901 N.Y.S.2d 556 [4th Dept. 2010], lv. denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ).