Opinion
1131 KA 19-00340
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Salaudeen ROOTS, Defendant-Appellant.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND BANNISTER, 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 attempted promoting prison contraband in the first degree ( Penal Law §§ 110.00, 205.25 [2] ). Contrary to defendant's contention, we conclude that the plea colloquy establishes that defendant knowingly, voluntarily, and intelligently waived the right to appeal (see People v. Mess , 186 A.D.3d 1069, 1069, 127 N.Y.S.3d 360 [4th Dept. 2020] ; see generally People v. Thomas , 34 N.Y.3d 545, 559-560, 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] ).
Although defendant's challenge to the voluntariness of his plea survives his valid waiver of the right to appeal (see Thomas , 34 N.Y.3d at 558, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Seaberg , 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), by failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the plea was not voluntarily entered (see People v. Garcia-Cruz , 138 A.D.3d 1414, 1414-1415, 30 N.Y.S.3d 427 [4th Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; see also People v. Lopez , 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). This case does not fall within the rare exception to the preservation requirement (see generally Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, we conclude that defendant's contention lacks merit (see People v. Hunt , 188 A.D.3d 1648, 1649, 132 N.Y.S.3d 384 [4th Dept. 2020], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 145, 167 N.E.3d 1280 [2021] ; People v. Green , 132 A.D.3d 1268, 1269, 17 N.Y.S.3d 807 [4th Dept. 2015], lv denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016], reconsideration denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ).
To the extent that defendant contends that County Court erred in accepting his plea because the record lacked the " ‘strong evidence of actual guilt’ " that would be required for an Alford plea ( People v. Elliott , 107 A.D.3d 1466, 1466, 965 N.Y.S.2d 899 [4th Dept. 2013], lv denied 22 N.Y.3d 996, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ), we conclude that defendant's contention is misplaced inasmuch as he did not enter an Alford plea (see People v. Gale , 130 A.D.2d 588, 588, 515 N.Y.S.2d 523 [2d Dept. 1987] ). Insofar as defendant challenges the factual sufficiency of the plea allocution, that challenge is encompassed by his valid waiver of the right to appeal (see People v. Oliver , 178 A.D.3d 1463, 1464, 112 N.Y.S.3d 637 [4th Dept. 2019] ; People v. Steinbrecher , 169 A.D.3d 1462, 1463, 93 N.Y.S.3d 787 [4th Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 652, 130 N.E.3d 1262 [2019] ).