Opinion
664 KA 22-00591
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Charles R. HOPKINS, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, 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 robbery in the second degree ( Penal Law § 160.10 [2] [a] ). We reject defendant's contention that the waiver of the right to appeal is invalid. Although the written waiver included a misleading heading, the oral colloquy, together with the remainder of the written waiver, "was sufficient to support a knowing and voluntary waiver under the totality of the circumstances" ( People v. Thomas , 34 N.Y.3d 545, 564, 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] ). Defendant further contends that the plea was not knowing, intelligent, and voluntary. Although that contention survives his valid waiver of the right to appeal, defendant failed to preserve the contention for our review inasmuch as he did not move to withdraw his guilty plea or to vacate the judgment of conviction (see People v. Turner , 175 A.D.3d 1783, 1784, 109 N.Y.S.3d 528 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 177, 139 N.E.3d 835 [2019] ), and we conclude that this case does not fall within the narrow exception to the preservation rule set forth in People v. Lopez , 71 N.Y.2d 662, 666-667, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988). Assuming, arguendo, that defendant's contention concerning County Court's determination revoking his bail survives the valid waiver of the right to appeal (see generally People v. Knoxsah , 94 A.D.3d 1505, 1506, 942 N.Y.S.2d 749 [4th Dept. 2012] ), we conclude that the contention is nevertheless not properly before us inasmuch as no appeal lies from such a determination (see People v. Maclean , 48 A.D.3d 1215, 1217, 850 N.Y.S.2d 819 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008], reconsideration denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ; see also People ex rel. Kuby v. Merritt , 96 A.D.3d 607, 608, 947 N.Y.S.2d 454 [1st Dept. 2012], lv denied 19 N.Y.3d 813, 2012 WL 4074179 [2012] ). Moreover, that contention was rendered moot by defendant's conviction (see People v. Ballman , 64 A.D.3d 9, 13, 877 N.Y.S.2d 771 [4th Dept. 2009], affd in part & appeal dismissed in part 15 N.Y.3d 68, 904 N.Y.S.2d 361, 930 N.E.2d 282 [2010] ), and defendant has failed to demonstrate the applicability of the exception to the mootness doctrine (see generally Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). Defendant's remaining contentions are encompassed by his valid waiver of the right to appeal (see generally People v. Lopez , 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).