Opinion
759 KA 20-00956
12-23-2022
The PEOPLE of the State of New York, Respondent, v. Rubin JONES, III, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT. RUBIN JONES, III, DEFENDANT-APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT.
RUBIN JONES, III, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, 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 two counts of criminal sexual act in the second degree ( Penal Law § 130.45 [2] ) and one count of endangering the welfare of an incompetent or physically disabled person in the first degree (§ 260.25). As an initial matter, defendant correctly contends in his main brief and the People correctly concede that defendant's waiver of the right to appeal is invalid because County Court "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v. Hussein , 192 A.D.3d 1705, 1706, 141 N.Y.S.3d 379 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 769, 171 N.E.3d 245 [2021] ; see People v. Thomas , 34 N.Y.3d 545, 565-566, 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 further agree with defendant that the waiver of the right to appeal is invalid because the court " ‘conflated the appeal waiver with the rights automatically waived by the guilty plea’ " ( People v. Smith , 156 A.D.3d 1336, 1336, 65 N.Y.S.3d 879 [4th Dept. 2017], lv denied 31 N.Y.3d 987, 77 N.Y.S.3d 665, 102 N.E.3d 442 [2018] ). Consequently, "the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Cooper , 136 A.D.3d 1397, 1398, 24 N.Y.S.3d 481 [4th Dept. 2016], lv denied 27 N.Y.3d 1067, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016] [internal quotation marks omitted]; see People v. Wright , 193 A.D.3d 1348, 1349, 143 N.Y.S.3d 259 [4th Dept. 2021], lv denied 37 N.Y.3d 969, 148 N.Y.S.3d 759, 171 N.E.3d 235 [2021] ).
Defendant contends in his main brief that the court should have afforded him the opportunity to withdraw his guilty plea because his statement of innocence at sentencing cast doubts on whether the plea was knowingly, intelligently, and voluntarily entered. Defendant failed to preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Scales , 118 A.D.3d 1500, 1500, 987 N.Y.S.2d 541 [4th Dept. 2014], lv denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147 [2014] ; see generally People v. Morrow , 167 A.D.3d 1516, 1517, 90 N.Y.S.3d 436 [4th Dept. 2018], lv denied 33 N.Y.3d 951, 100 N.Y.S.3d 154, 123 N.E.3d 813 [2019] ; People v. Wilkes , 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ). Contrary to defendant's contention, 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, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We further conclude that defendant failed to preserve for our review his contention in his pro se supplemental brief that he was coerced into taking the plea by statements made by the court (see generally People v. Kelly , 145 A.D.3d 1431, 1431, 42 N.Y.S.3d 913 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Lando , 61 A.D.3d 1389, 1389, 876 N.Y.S.2d 923 [4th Dept. 2009], lv denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 [2009] ).
We reject defendant's contention in his main brief that the sentence is unduly harsh and severe.
Defendant's challenge in his pro se supplemental brief to the legal sufficiency of the evidence before the grand jury does not survive his guilty plea (see People v. Hansen , 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Scarbrough , 162 A.D.3d 1575, 1575, 78 N.Y.S.3d 849 [4th Dept. 2018], lv denied 34 N.Y.3d 1081, 116 N.Y.S.3d 156, 139 N.E.3d 814 [2019], reconsideration denied 35 N.Y.3d 974, 125 N.Y.S.3d 37, 148 N.E.3d 501 [2020] ; People v. Oswold , 151 A.D.3d 1756, 1756-1757, 55 N.Y.S.3d 568 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ). Review of defendant's contention in his pro se supplemental brief that the indictment contained duplicitous counts was forfeited by his plea of guilty (see People v. Bracewell , 26 A.D.3d 812, 812, 810 N.Y.S.2d 273 [4th Dept. 2006], lv denied 7 N.Y.3d 752, 819 N.Y.S.2d 878, 853 N.E.2d 249 [2006] ; see generally People v. Beattie , 80 N.Y.2d 840, 842, 587 N.Y.S.2d 585, 600 N.E.2d 216 [1992] ).
Finally, we note that the certificate of conviction erroneously states that defendant was convicted of endangering the welfare of an incompetent or physically disabled person in the first degree under Penal Law § 265.25, and it must be amended to correctly reflect that defendant was convicted of that offense under Penal Law § 260.25 (see generally People v. Thurston , 208 A.D.3d 1629, 1630, 174 N.Y.S.3d 663 [4th Dept. 2022] ).