Opinion
07-26-2024
The PEOPLE of the State of New York, Respondent, v. Erin O’CONNOR, Defendant-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, HI, OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered December 20, 2019. The judgment convicted defendant, upon her plea of guilty, of grand larceny in the fourth degree.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, HI, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, 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 that convicted her, upon her guilty plea, of grand larceny in the fourth degree (Penal Law § 155.30 [8]). We agree with defendant, and the People correctly concede, that her waiver of the right to appeal is invalid, inasmuch as Supreme Court’s oral colloquy mischaracterized the waiver as an absolute bar to the taking of an appeal (see People v. Thomas, 34 N.Y.3d 545, 564-566, 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]; People v. Cole, 181 A.D.3d 1329, 1330, 121 N.Y.S.3d 766 [4th Dept. 2020]; People v. Dozier, 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020]).
On the merits, defendant contends that her plea was not knowing, intelligent, and voluntary. Defendant correctly concedes that she failed to preserve that contention for our review, because she did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Boyde, 224 A.D.3d 1306, 1306-1307, 204 N.Y.S.3d 364 [4th Dept. 2024]; People v. Derrell A.E., 128 A.D.3d 1536, 1536-1537, 7 N.Y.S.3d 923 [4th Dept. 2015], lv denied 26 N.Y.3d 928, 17 N.Y.S.3d 91, 38 N.E.3d 837 [2015]; see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]). Contrary to defendant’s contention, this case does not fall within the narrow exception to the preservation requirement set forth in (People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interests of justice (see CPL 470.15 [3] [c]).