Opinion
90 KA 14–00995
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Nelson TAPIA, Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. BARRY PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
BARRY PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of promoting prison contraband in the first degree ( Penal Law § 205.25[2] ). Contrary to defendant's contention, the record establishes that County Court "conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Burtes, 151 A.D.3d 1806, 1806, 58 N.Y.S.3d 766 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017] [internal quotation marks omitted]; see People v. Hand, 147 A.D.3d 1326, 1326, 45 N.Y.S.3d 832 [4th Dept. 2017], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017] ). Contrary to defendant's further contention, the court " ‘was not required to specify during the colloquy which specific claims survive the waiver of the right to appeal’ " ( Burtes, 151 A.D.3d at 1806–1807, 58 N.Y.S.3d 766 ).
Defendant's contention that "his plea was not knowing, intelligent and voluntary ‘because he did not recite the underlying facts of the crime but simply replied to [the court's] questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution,’ which is encompassed by the valid waiver of the right to appeal" ( People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ; see Burtes, 151 A.D.3d at 1807, 58 N.Y.S.3d 766 ).In addition, defendant contends that his plea was involuntary because he negated essential elements of the crime and expressed confusion in his responses during the plea colloquy, and the court failed to conduct a sufficient inquiry to ensure that the plea was voluntary. That contention survives the waiver of the right to appeal, but defendant failed to preserve it for our review because he did not move to withdraw the plea or to vacate the judgment of conviction, and this case does not fall within the rare exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Although defendant initially negated essential elements of promoting prison contraband in the first degree by denying that he knowingly possessed dangerous contraband (see Penal Law § 205.25[2] ; People v. Harris, 134 A.D.3d 1587, 1587–1588, 23 N.Y.S.3d 516 [4th Dept. 2015], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ), the record establishes that the court conducted the requisite further inquiry and that defendant's responses to the court's subsequent questions removed any doubt about his guilt (see People v. Bonacci, 119 A.D.3d 1348, 1349, 988 N.Y.S.2d 391 [4th Dept. 2014], lv denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014] ). To the extent that defendant's other statements during the plea colloquy "otherwise call[ed] into question the voluntariness of the plea" ( Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), we conclude that the court properly accepted the plea after making "further inquir[ies] to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered" ( id. ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.