Opinion
2016–11850 Ind. No. 1771/14
05-20-2020
The PEOPLE, etc., Respondent, v. Charles PRAY, Appellant.
Laurette D. Mulry, Riverhead, N.Y. (Lisa Marcoccia of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred J. Croce and Thomas C. Costello of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Lisa Marcoccia of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred J. Croce and Thomas C. Costello of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Stephen L. Braslow, J.), rendered September 12, 2016, convicting him of murder in the second degree, criminal possession of stolen property in the third degree, grand larceny in the fourth degree, criminal possession of a controlled substance in the seventh degree, driving while ability impaired by drugs, and aggravated unlicensed operation of a motor vehicle in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the County Court (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 ; People v. Anderson, 170 A.D.3d 878, 93 N.Y.S.3d 864 ; People v. Williams, 110 A.D.3d 746, 747, 972 N.Y.S.2d 94 ). In any event, the defendant's contention is without merit. Contrary to the defendant's contention, the chronology in which the court conducted the plea allocution does not render his plea invalid (see People v. Martinez, 159 A.D.3d 836, 69 N.Y.S.3d 820 ). Moreover, "[a]lthough the defendant was not advised by the County Court of each of the federal constitutional rights he was waiving by pleading guilty, a plea of guilty ‘will not be invalidated solely because the Trial Judge failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him ... a list of detailed waivers before accepting the guilty plea’ " ( People v. Jackson, 114 A.D.3d 807, 807–808, 979 N.Y.S.2d 704, quoting People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [internal quotation marks omitted]; see People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170 ). Here, the court's express advisement to the defendant that by pleading guilty he was waiving certain constitutional rights, taken together with the rationality of the plea and the other assurances of voluntariness provided on the record, demonstrate that the defendant's plea of guilty was knowing, voluntary, and intelligent (see People v. Harris, 61 N.Y.2d at 21–22, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Jackson, 114 A.D.3d at 808, 979 N.Y.S.2d 704 ). Further, the defendant's contention that the plea was not knowingly, voluntarily, and intelligently entered because the court failed to sufficiently inquire as to a potential intoxication defense is without merit. The record reflects that defense counsel spoke at length with the defendant regarding the intoxication defense prior to the defendant accepting the plea, the defendant acknowledged that he was waiving any defenses that he had by pleading guilty, and the defendant did not make any statements during the plea allocution that potentially negated the element of intent (see People v. Diaz–Hernandez, 166 A.D.3d 1389, 1390, 88 N.Y.S.3d 694 ; People v. Hopper, 153 A.D.3d 1045, 1046, 61 N.Y.S.3d 176 ; People v. Loucks, 125 A.D.3d 887, 890, 4 N.Y.S.3d 256 ).
The defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The County Court's statements improperly suggested that the waiver of the right to appeal was mandatory rather than a right that the defendant was being asked to voluntarily relinquish as a condition of the plea agreement, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Mojica, 178 A.D.3d 856, 111 N.Y.S.3d 885 ; People v. Waldon, 157 A.D.3d 913, 914, 66 N.Y.S.3d 906 ; People v. Santeramo, 153 A.D.3d 1286, 61 N.Y.S.3d 295 ). Moreover, the record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty (see People v. Waldon, 157 A.D.3d at 914, 66 N.Y.S.3d 906 ; People v. Santeramo, 153 A.D.3d at 1286–1287, 61 N.Y.S.3d 295 ). Therefore, the defendant's purported waiver of the right to appeal does not preclude appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., COHEN, CHRISTOPHER and WOOTEN, JJ., concur.