Opinion
2017–02401 2019–04462 Ind.No. 7/16
09-18-2019
The PEOPLE, etc., Respondent, v. Melinda S. LUCK, Appellant.
Melinda Luck, named herein as Melinda S. Luck, Mahopac Falls, NY, appellant pro se. Robert V. Tendy, District Attorney, Carmel, N.Y. (David M. Bishop of counsel), for respondent.
Melinda Luck, named herein as Melinda S. Luck, Mahopac Falls, NY, appellant pro se.
Robert V. Tendy, District Attorney, Carmel, N.Y. (David M. Bishop of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, HECTOR D. LASALLE, JJ.
DECISION & ORDER Appeals by the defendant from (1) a judgment of the County Court, Putnam County (James T. Rooney, J.), rendered January 11, 2017, convicting her of driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192(3), upon her plea of guilty, and imposing sentence, and (2) a resentence of the same court imposed March 29, 2017.
ORDERED that the judgment and the resentence are affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Although the defendant's contention concerning the voluntariness of her plea survives her valid appeal waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ; People v. Camarda, 138 A.D.3d 884, 29 N.Y.S.3d 511 ), the contention is unpreserved for appellate review because she did not move to vacate her plea or otherwise raise the issue in the County Court (see CPL 220.60 ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Bautista, 138 A.D.3d 754, 27 N.Y.S.3d 893 ; People v. Scott, 39 A.D.3d 570, 571, 834 N.Y.S.2d 226 ). While an exception to the preservation requirement applies when a defendant's recitation of the facts underlying the crime casts significant doubt on the defendant's guilt, negates an essential element of the crime, or calls into question the voluntariness of the plea (see People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929 ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), that is not the case here.
In any event, the record as a whole affirmatively demonstrates that the defendant entered her plea of guilty knowingly, voluntarily, and intelligently (see People v. Conceicao, 26 N.Y.3d 375, 382–383, 44 N.E.3d 199 ; People v. Harris, 61 N.Y.2d 9, 19–20, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. May, 138 A.D.3d 1146, 30 N.Y.S.3d 327 ). The Court of Appeals has "never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense, or provides a factual exposition for each element of the pleaded-to offense. Indeed, ‘[the Court has] said repeatedly that there is no requirement for a uniform mandatory catechism of pleading defendants’ " ( People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [citations omitted], quoting People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ). "Rather, ‘[i]t is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea’ " ( People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103, quoting People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ). Here, the record of the plea proceeding demonstrates that the defendant understood the charge to which she pleaded guilty and made an intelligent decision to enter a plea of guilty (see People v. Goldstein, 12 N.Y.3d at 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ; People v. Cortez, 170 A.D.3d 744, 93 N.Y.S.3d 588 ; People v. Woods, 147 A.D.3d 1156, 46 N.Y.S.3d 441 ; People v. Nichols, 77 A.D.3d 1339, 1340, 908 N.Y.S.2d 295 ).
The defendant contends that the County Court erred in resentencing her without offering her an opportunity to withdraw her plea. Although this contention survives the defendant's valid waiver of the right to appeal, it is unpreserved for appellate review since the defendant failed to object to the resentence or move to vacate her plea on that basis (see People v. Godfrey, 33 A.D.3d 623, 822 N.Y.S.2d 135 ). In any event, given that she received at resentencing a term of imprisonment that was less than what was promised at the time of the plea, the resentence comported with the defendant's reasonable understanding and legitimate expectations (see People v. Collier, 22 N.Y.3d 429, 434, 982 N.Y.S.2d 34, 5 N.E.3d 5 ; People v. Moss, 166 A.D.3d 655, 84 N.Y.S.3d 915 ).
The defendant's valid waiver of her right to appeal precludes appellate review of any contention that she was deprived of the effective assistance of counsel except to the extent that the alleged ineffective assistance affected the voluntariness of her plea (see People v. Dancy, 156 A.D.3d 717, 66 N.Y.S.3d 530 ; People v. Upson, 134 A.D.3d 1058, 21 N.Y.S.3d 688 ). That aspect of her contention is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus, constitutes a "mixed claim" of ineffective assistance ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing this claim (see People v. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
AUSTIN, J.P., LEVENTHAL, ROMAN and LASALLE, JJ., concur.