Opinion
112502
12-08-2022
The PEOPLE of the State of New York, Respondent, v. Scott D. RETELL, Appellant.
Craig Meyerson, Peru, for appellant. Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella of counsel), for respondent.
Craig Meyerson, Peru, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella of counsel), for respondent.
Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from a judgment of the County Court of Saratoga County (James A. Murphy, III, J.), rendered August 28, 2019, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.
Defendant was charged in an indictment with four counts. Pursuant to a negotiated disposition, defendant purportedly waived his right to appeal and entered an Alford plea to one count of grand larceny in the fourth degree. County Court sentenced defendant, as a second felony offender, to the agreed-upon prison term of 1½ to 3 years. Defendant appeals.
We affirm. Initially, we agree with both defendant and the People's concession that the waiver of appeal is invalid. Although the written waiver of appeal indicated that the "right to appeal is separate and distinct from those rights ... automatically forfeited upon [defendant's] plea of guilty" and listed legal issues that would be foreclosed by the appeal waiver, the written waiver also provided that defendant was waiving his right to appeal "[a]ny other matters which [he] may have an appeal as of right or otherwise" and that the waiver "encompasses all issues arising from this criminal proceeding." "County Court's oral colloquy did not attempt to clarify that the appeal waiver was not a total bar to taking an appeal. Given the mischaracterization of the appellate rights waived as encompassing an absolute bar to taking a first-tier direct appeal, and the failure to clarify that appellate review remained available for certain issues, we are unable to find that defendant understood the nature of the appellate rights being waived[,] and, thus, the waiver is not enforceable" ( People v. Pompey, 203 A.D.3d 1411, 1412, 164 N.Y.S.3d 718 [3d Dept. 2022] [citations omitted], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 376, 188 N.E.3d 568 [2022] ; see People v. Mayeaux, 197 A.D.3d 1443, 1444, 153 N.Y.S.3d 692 [3d Dept. 2021], lv denied 37 N.Y.3d 1147, 159 N.Y.S.3d 339, 180 N.E.3d 503 [2021] ; People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379 [3d Dept. 2021] ).
Although defendant's challenge to the factual sufficiency of his Alford plea is not precluded given the invalid appeal waiver, we nevertheless conclude that defendant's contention is not preserved for our review, as he did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Elawar, 204 A.D.3d 1247, 1248–1249, 165 N.Y.S.3d 385 [3d Dept. 2022], lv denied 38 N.Y.3d 1133, 172 N.Y.S.3d 842, 193 N.E.3d 507 [2022] ; People v. Morehouse, 140 A.D.3d 1202, 1203, 33 N.Y.S.3d 491 [3d Dept. 2016], lv denied 28 N.Y.3d 934, 40 N.Y.S.3d 362, 63 N.E.3d 82 [2016] ; People v. Ture, 94 A.D.3d 1163, 1164, 941 N.Y.S.2d 530 [3d Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; People v. Hinckley, 50 A.D.3d 1466, 1467, 856 N.Y.S.2d 399 [4th Dept. 2008], lv denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ), "and the plea allocution does not engender significant doubt regarding defendant's guilt or otherwise call into question the voluntariness of the plea to bring this case within the narrow exception to the preservation requirement" ( People v. Tchiyuka, 160 A.D.3d 1488, 1488–1489, 76 N.Y.S.3d 340 [4th Dept. 2018] ; see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). In any event, were the claim properly preserved, we would conclude that the record establishes that defendant's Alford plea was the product of a voluntary and rational choice, and the record contains strong evidence of actual guilt (see People v. Hill, 16 N.Y.3d 811, 814, 921 N.Y.S.2d 181, 946 N.E.2d 169 [2011] ; People v. Alsaifullah, 162 A.D.3d 1483, 1485, 77 N.Y.S.3d 811 [4th Dept. 2018], lv denied 32 N.Y.3d 1062, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018] ; People v. Bates, 83 A.D.3d 1110, 1113, 920 N.Y.S.2d 795 [3d Dept. 2011], lv denied 21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013] ).
To the extent that defendant's claim regarding his Alford plea implicates the voluntariness of his plea, we note that such a claim would survive even a valid appeal waiver (see People v. Fallen, 106 A.D.3d 1118, 1119, 963 N.Y.S.2d 777 [3d Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ; People v. Ebert, 15 A.D.3d 781, 782, 789 N.Y.S.2d 772 [3d Dept. 2005] ).
By pleading guilty, defendant waived his challenge to the sufficiency of the grand jury evidence supporting the second count of the indictment (see People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Dunbar, 53 N.Y.2d 868, 871, 440 N.Y.S.2d 613, 423 N.E.2d 36 [1981] ; People v. Snype, 171 A.D.3d 1220, 1220–1221, 96 N.Y.S.3d 872 [2d Dept. 2019] ; People v. Carston, 163 A.D.3d 1166, 1167, 80 N.Y.S.3d 724 [3d Dept. 2018], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ; People v. Melendez, 48 A.D.3d 960, 960, 852 N.Y.S.2d 440 [3d Dept. 2008], lv denied 10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452 [2008] ). Finally, defendant's contention that County Court lacked geographical jurisdiction under CPL 20.40 is raised for the first time on appeal and is not preserved for appellate review (see People v. Greenberg, 89 N.Y.2d 553, 556, 656 N.Y.S.2d 192, 678 N.E.2d 878 [1997] ; People v. McLaughlin, 80 N.Y.2d 466, 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357 [1992] ; People v. Roulhac, 166 A.D.3d 1066, 1068, 86 N.Y.S.3d 336 [3d Dept. 2018], lv denied 32 N.Y.3d 1128, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018] ; People v. Hinds, 77 A.D.3d 429, 430, 908 N.Y.S.2d 397 [1st Dept. 2010], lvs denied 15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ), and we decline to exercise our interest of justice jurisdiction to reverse on this basis (cf. Matter of Steingut v. Gold, 42 N.Y.2d 311, 313–316, 397 N.Y.S.2d 765, 366 N.E.2d 854 [1977] ; Matter of Gentner v. Hall, 193 A.D.3d 1129, 1131–1132, 146 N.Y.S.3d 330 [3d Dept. 2021] ; People v. Maldonado, 122 A.D.3d 1379, 1379–1380, 997 N.Y.S.2d 205 [4th Dept. 2014], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ; Matter of Stewart v. Hartnett, 34 A.D.3d 1134, 1136, 824 N.Y.S.2d 786 [3d Dept. 2006], appeal dismissed 8 N.Y.3d 936, 834 N.Y.S.2d 505, 866 N.E.2d 451 [2007] ).
Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ., concur.
ORDERED that the judgment is affirmed.