Opinion
2015–874 W CR
01-18-2018
The PEOPLE of the State of New York, Respondent, v. Jesse W. RODRIGUEZ, Appellant.
Scott M. Bishop, Esq., for appellant. Westchester County District Attorney (Laurie Sapakoff and Steven A. Bender of counsel), for respondent.
Scott M. Bishop, Esq., for appellant.
Westchester County District Attorney (Laurie Sapakoff and Steven A. Bender of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a felony complaint with criminal possession of a forged instrument in the first degree ( Penal Law § 170.30 ) for conduct that allegedly occurred on January 9, 2015. He was arraigned on January 9, 2015, and, on January 13, 2015, his bail request was denied and he was remanded to jail. On January 20, 2015, defendant pleaded guilty to the reduced charge of criminal possession of a forged instrument in the third degree ( Penal Law § 170.20 ) and, on March 17, 2015, was sentenced to nine months in jail. On appeal, defendant contends that he cannot be guilty of the crime to which he pleaded guilty because he was allocuted to having committed that crime on January 19, 2015, however, he was incarcerated in the Westchester County Jail on that date, thereby making it factually impossible for him to have possessed forged currency on January 19, 2015.
We note, as a threshold matter, that a defendant may waive the right to appeal as a condition of a guilty plea (see People v. Lopez , 6 NY3d 248, 255 [2006] ; People v. Seaberg , 74 NY2d 1, 10 [1989] ; People v. Brown , 122 AD3d 133 [2014] ). Generally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to "the very heart of the process" ( Lopez , 6 NY3d at 255 ; see People v. Pacherille , 25 NY3d 1021, 1023 [2015] ). However, a waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily, which occurs when a defendant has a full appreciation of the consequences of such waiver (see People v. Bradshaw , 18 NY3d 257, 264 [2011] ; Lopez , 6 NY3d at 256 ; Brown , 122 AD3d at 136 ) and the fact that this waiver is separate and distinct from those trial rights automatically forfeited upon a plea of guilty (see People v. Leach , 26 NY3d 1154 [2016] ; Lopez , 6 NY3d at 256 ). Here, although defendant executed a misdemeanor conviction waiver of rights form, which included a waiver of his right to appeal, that waiver was ineffective since the record failed to establish that he understood that the right to appeal was separate and distinct from his trial rights, which were automatically forfeited upon his plea of guilty (cf. People v. Bryant , 28 NY3d 1094 [2016] ). Thus, since defendant did not have a full appreciation of the consequences of this waiver, it cannot be considered to have been made knowingly, intelligently and voluntarily. He is, therefore, not precluded from bringing the instant appeal.
Nonetheless, by failing to move in the City Court to either withdraw his guilty plea (see CPL 220.60 [3 ] ) or to vacate the judgment of conviction (see CPL 440.10 ), defendant failed to preserve the issue now raised on appeal pertaining to the factual sufficiency of his plea allocution (see People v. Williams , 27 NY3d 212 [2016] ; People v. Leach , 26 NY3d 1154 ; People v. Toxey , 86 NY2d 725, 726 [1995] ). As defendant was sentenced almost two months after he had entered his plea of guilty and, upon a review of the record, we find no suggestion from the allocution that the guilty plea was improvident or baseless, the narrow exceptions to the preservation requirement do not apply here (see People v. Lopez , 71 NY2d 662, 666 [1988] ; cf. People v. Louree , 8 NY3d 541 [2007] ). Moreover, we decline to review this issue in the interest of justice (see People v. Sands , 45 AD3d 414 [2007] ). In any event, we note that, where, as here, a defendant pleads guilty to a lesser crime than the one charged in the accusatory instrument, a factual basis for the plea is unnecessary (see People v. Moore , 71 NY2d 1002 [1988] ; People v. Sanchez , 122 AD3d 646 [2014] ).
Accordingly, the judgment of conviction is affirmed.
MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.