Opinion
2015-02-13
The PEOPLE of the State of New York, Respondent, v. Anthony C. HARRIS, Defendant–Appellant.
Muldoon, Getz & Reston, Rochester (Martin P. McCarthy, II, of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
Muldoon, Getz & Reston, Rochester (Martin P. McCarthy, II, of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a forged instrument in the second degree (Penal Law §§ 110.00, 170.25). We agree with defendant that his waiver of the right to appeal is invalid. “During the plea colloquy, County Court conflated the appeal waiver with the rights automatically waived by the guilty plea” ( People v. Sanborn, 107 A.D.3d 1457, 1458, 965 N.Y.S.2d 910 [internal quotation marks omitted]; see People v. Tate, 83 A.D.3d 1467, 1467, 919 N.Y.S.2d 919).
Defendant failed to move to withdraw his guilty plea under CPL 220.60(3) or to vacate the judgment of conviction under CPL 440.10 and, therefore, his challenge to the factual sufficiency of the plea allocution is not preserved for our review ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. McKeon, 78 A.D.3d 1617, 1618, 910 N.Y.S.2d 623, lv. denied16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155). Further, this is not one of those “rare case [s]” in which, during the plea allocution, “defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). In any event, we note that “no factual colloquy was required inasmuch as defendant pleaded guilty to a crime lesser than that charged in the indictment” (People v. Richards, 93 A.D.3d 1240, 1240, 940 N.Y.S.2d 431, lv. denied20 N.Y.3d 1014, 960 N.Y.S.2d 357, 984 N.E.2d 332; see People v. Neil, 112 A.D.3d 1335, 1336, 977 N.Y.S.2d 519, lv. denied23 N.Y.3d 1040, 993 N.Y.S.2d 254).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.