Opinion
05-03-2017
The PEOPLE, etc., respondent, v. Clarence THOMAS, appellant.
John P. Savoca, Yorktown, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Grant D. O'Donnell and Laurie G. Sapakoff of counsel), for respondent.
John P. Savoca, Yorktown, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Grant D. O'Donnell and Laurie G. Sapakoff of counsel), for respondent.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered May 12, 2015, convicting him of manslaughter in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that his plea of guilty was not knowing, voluntary, or intelligent because he was not advised of certain constitutional rights he was forfeiting as a result of his plea of guilty. While the defendant validly waived his right to appeal (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ; People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ), his contentions concerning the voluntariness of his plea of guilty survive his appeal waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ; People v. May, 138 A.D.3d 1146, 30 N.Y.S.3d 327 ; People v. Murphy, 114 A.D.3d 704, 979 N.Y.S.2d 829 ). However, this contention is unpreserved for appellate review, as the defendant failed to move to vacate his plea prior to the imposition of sentence or otherwise raise the issue before the County Court (see People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ; People v. Sirico, 135 A.D.3d 19, 22, 18 N.Y.S.3d 430 ; People v. Isaiah S., 130 A.D.3d 1081, 1081–1082, 13 N.Y.S.3d 840 ). In any event, the defendant's contentions are belied by the record. Some of the defendant's contentions in connection with his claim that his plea was not knowingly, voluntarily, or intelligently entered cannot be reviewed on direct appeal in that they are based on matter dehors the record, including his claims that he was on medication at the time of the plea and that potential jurors heard the plea negotiations (see People v. Moss, 70 A.D.3d 862, 862, 894 N.Y.S.2d 123 ; People v. Vasquez, 40 A.D.3d 1134, 1135, 837 N.Y.S.2d 693 ). To the extent that the defendant's claim can be reviewed, the record establishes that the defendant knowingly, voluntarily, and intelligently entered his negotiated plea of guilty (see People v. Moss, 70 A.D.3d at 862, 894 N.Y.S.2d 123 ). The record reveals that the court advised the defendant of his rights under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and other constitutional rights he was forfeiting by pleading guilty (see People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ; People v. Sirico, 135 A.D.3d at 22, 18 N.Y.S.3d 430 ; People v. Isaiah S., 130 A.D.3d at 1082, 13 N.Y.S.3d 840 ). Furthermore, the defendant acknowledged that he had discussed the plea with his attorney, that he had consulted with his attorney regarding the evidence that he would have presented at trial, and that he was satisfied with his attorney's representation (see People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ). The record as a whole affirmatively demonstrates that the defendant entered his plea of guilty knowingly, voluntarily, and intelligently (see People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Harris, 61 N.Y.2d 9, 19–20, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Molina, 146 A.D.3d 815, 46 N.Y.S.3d 122 ).
Further, the defendant's valid waiver of his right to appeal precludes review of his contention that the agreed-upon sentence, which was in fact imposed, was excessive (see People v. Lopez, 6 N.Y.3d at 255, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Seaberg, 74 N.Y.2d at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Arias, 100 A.D.3d 914, 953 N.Y.S.2d 892 ; People v.
Hawthorne, 85 A.D.3d 819, 924 N.Y.S.2d 822 ; People v. Benitez, 84 A.D.3d 826, 827, 922 N.Y.S.2d 797 ).