Opinion
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Ryan F. RIOS, Also Known as Ryan Rios, Also Known as Ryan Fernando Rios, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BHAGYASHREE GUPTE OF COUNSEL), FOR DEFENDANT-APPELLANT. KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered February 18, 2020. The judgment convicted defendant upon his plea of guilty of rape in the second degree. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BHAGYASHREE GUPTE OF COUNSEL), FOR DEFENDANT-APPELLANT.
KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, 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 convicting him upon his plea of guilty of rape in the second degree (Penal Law § 130.30 [1]). Even assuming, arguendo, that defendant’s waiver of the right to appeal is invalid and therefore does not preclude his challenge to the severity of the sentence (see People v. Hoffman, 191 A.D.3d 1262, 1263, 137 N.Y.S.3d 784 [4th Dept. 2021], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 135, 167 N.E.3d 1270 [2021]), we conclude that the sentence is not unduly harsh or severe.
Defendant also contends that his guilty plea was not knowing, voluntary, and intelligent because County Court failed to advise him of the possibility of civil confinement pursuant to the Sex Offender Management and Treatment Act (Mental Hygiene Law § 10.01 et seq.). Defendant failed to move to withdraw the plea or to vacate the judgment of conviction on that ground, however, and thus he failed to preserve his contention for our review (see People v. Colbert, 84 A.D.3d 1755, 1755, 922 N.Y.S.2d 841 [4th Dept. 2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011]; see also People v. Miller, 166 A.D.3d 812, 813, 88 N.Y.S.3d 199 [2d Dept. 2018], lv denied 33 N.Y.3d 951, 100 N.Y.S.3d 160, 123 N.E.3d 819 [2019]). This case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988).