Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Robert J. SAMPSON, Jr., Defendant–Appellant. (Appeal No. 1.).
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30[8] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (§ 140.20). In 2010, defendant pleaded guilty to burglary in the third degree in appeal No. 2 and signed a drug court contract providing that, if he completed a drug court program, he would be allowed to withdraw his plea and instead plead guilty to a misdemeanor. The contract further provided that, if defendant was terminated from the program, he would be sentenced to a term of imprisonment. Defendant's progress in the program did not prove fruitful and, ultimately, he absconded from the program and relapsed into drug use. During March of 2013, while still avoiding apprehension by the authorities, defendant entered his uncle's property and stole an antique tractor. Defendant was returned to custody on a bench warrant later that month, pleaded guilty to grand larceny, admitted that he had violated the drug court contract, and was sentenced as a second felony offender to an indeterminate term of incarceration on the burglary conviction in appeal No. 2 and to an indeterminate term of imprisonment on the grand larceny conviction in appeal No. 1, running consecutively to his sentence in appeal No. 2.
Defendant contends in appeal No. 2 that the appeal waiver in his drug court contract is invalid because there was no corresponding oral colloquy. We agree. "Although the drug court contract contained a written waiver of the right to appeal, County Court did not conduct any colloquy concerning that waiver at the plea proceeding in 2010, and we conclude that the contract alone is insufficient to establish a valid waiver" in appeal No. 2 (People v. Mason, 144 A.D.3d 1589, 1589, 40 N.Y.S.3d 694 ; see People v. Myers, 145 A.D.3d 1596, 1596–1597, 45 N.Y.S.3d 745 ; see generally People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). We reject, however, defendant's challenge in appeal No. 1 to his appeal waiver entered at the plea proceeding in 2013. "Even if there were any ambiguity in the ... court's colloquy, defendant executed a detailed written waiver" (People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; cf. Bradshaw, 18 N.Y.3d at 266–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ), and the court's " ‘plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " (People v. Arney, 120 A.D.3d 949, 949, 990 N.Y.S.2d 752 ; see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Buske, 87 A.D.3d 1354, 1354, 930 N.Y.S.2d 155, lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 751, 963 N.E.2d 128 ).
Defendant contends in each appeal that his plea was not knowing, voluntary, and intelligent. As a preliminary matter, we note that defendant's challenges to the voluntariness of his plea in appeal No. 1 survive his valid waiver of the right to appeal (see People v. Wisniewski, 128 A.D.3d 1481, 1481, 8 N.Y.S.3d 539, lv. denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 ). Nonetheless, we conclude that defendant's contentions in each appeal are not preserved for our review because he did not move to withdraw his respective pleas or move to vacate the respective judgments of conviction (see People v. Gerald, 103 A.D.3d 1249, 1249, 959 N.Y.S.2d 362 ). In any event, defendant's contentions have no merit. In each appeal, "[t]he record establishes that defendant's plea was knowingly, voluntarily, and intelligently entered even though some of defendant's responses to the court's inquiries were monosyllabic" (People v. Lewis, 114 A.D.3d 1310, 1311, 980 N.Y.S.2d 231, lv. denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 ; see People v. VanDeViver, 56 A.D.3d 1118, 1118, 867 N.Y.S.2d 586, lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450, reconsideration denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 ). "[W]e have never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense ..., or provides a factual exposition for each element of the pleaded-to offense" (People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ), and "defendant made no statements at the time of [either] plea that cast any doubt on his guilt" (People v. Jeanty, 41 A.D.3d 1223, 1223, 838 N.Y.S.2d 293, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 ).
Finally, defendant's valid waiver of the right to appeal with respect to both the conviction and sentence encompasses his contention that the sentence imposed in appeal No. 1 is unduly harsh and severe (see People v. Rodman, 104 A.D.3d 1186, 1188, 960 N.Y.S.2d 784, lv. denied 22 N.Y.3d 1202, 986 N.Y.S.2d 422, 9 N.E.3d 917 ; see also People v. Lucieer, 107 A.D.3d 1611, 1613, 967 N.Y.S.2d 575 ). The sentence imposed in appeal No. 2 is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.