Opinion
112912
12-08-2022
The PEOPLE of the State of New York, Respondent, v. Romaldo TIUL–PUTUL, Appellant.
Theodore J. Stein, Woodstock, for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Theodore J. Stein, Woodstock, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and McShan, JJ.
MEMORANDUM AND ORDER
Pritzker, J. Appeal from a judgment of the County Court of Ulster County (James R. Farrell, J.), rendered January 31, 2020, convicting defendant upon his plea of guilty of the crime of attempted rape in the second degree.
Defendant waived indictment and pleaded guilty to a superior court information charging him with attempted rape in the second degree with the understanding that he would be sentenced to a prison term of four years, to be followed by 10 years of postrelease supervision. The charge stemmed from him allegedly having sexual intercourse with a 12–year–old girl. The plea agreement also required defendant to waive his right to appeal. County Court thereafter imposed the agreed-upon sentence and this appeal ensued.
We affirm. Initially, we find that defendant's waiver of the right to appeal is invalid. The written waiver contained overbroad language that mischaracterized the rights being waived and County Court "failed to ensure that defendant understood the distinction that some appellate review survived the appeal waiver" ( People v. Carney, 207 A.D.3d 1000, 1000, 172 N.Y.S.3d 243 [3d Dept. 2022] [internal quotation marks and citations omitted]; see People v. Streater, 207 A.D.3d 952, 953, 172 N.Y.S.3d 238 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 519, 198 N.E.3d 762 [Oct. 6, 2022] ). As defendant's waiver of the right to appeal is unenforceable, to the extent that defendant challenges the severity of the sentence imposed, that claim is not precluded. Nevertheless, although defendant received the maximum sentence for the crime to which he pleaded guilty, considering the nature of the offense, the fact that he agreed to the sentence and that the plea agreement permitted him to plead guilty to a reduced charge, we discern no basis upon which to disturb the sentence as unduly harsh or severe (see CPL 470.15[6][b] ; People v. Patterson, 119 A.D.3d 1157, 1158–1159, 990 N.Y.S.2d 319 [3d Dept. 2014], lv denied 24 N.Y.3d 1046, 998 N.Y.S.2d 316, 23 N.E.3d 159 [2014] ; People v. Shan, 117 A.D.3d 1098, 1099, 985 N.Y.S.2d 187 [3d Dept. 2014], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 256, 17 N.E.3d 511 [2014] ).
Defendant's challenge to the propriety of his arraignment is unpreserved for our review as he failed to raise this issue before County Court (see People v. Luckerson, 135 A.D.3d 1186, 1187, 25 N.Y.S.3d 382 [3d Dept. 2016] ; People v. Hallenbeck, 81 A.D.3d 1077, 1078, 916 N.Y.S.2d 662 [3d Dept. 2011] ). To the extent that his claim implicates County Court's jurisdiction, defendant submitted to the court's jurisdiction through his subsequent appearances and his guilty plea (see People v. Luckerson, 135 A.D.3d at 1187, 25 N.Y.S.3d 382 ; People v. Miller, 27 A.D.3d 1017, 1018, 811 N.Y.S.2d 500 [3d Dept. 2006] ; see also People v. Roberts, 6 A.D.3d 942, 943, 775 N.Y.S.2d 424 [3d Dept. 2004], lv denied 3 N.Y.3d 662, 782 N.Y.S.2d 704, 816 N.E.2d 577 [2004] ). Defendant's related claim that counsel was ineffective for not challenging the propriety of the arraignment is without merit, as the record reflects that the arraignment adequately complied with the statutory requirements (see CPL 180.10 ).
Defendant's remaining claims that he was denied the effective assistance of counsel impact the voluntariness of his plea, but have not been preserved by an appropriate postallocution motion (see People v. Harris, 201 A.D.3d 1030, 1031, 156 N.Y.S.3d 766 [3d Dept. 2022], lv denied 38 N.Y.3d 950, 165 N.Y.S.3d 469, 185 N.E.3d 990 [2022] ; People v. Brewster, 194 A.D.3d 1266, 1267, 144 N.Y.S.3d 402 [3d Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 690, 172 N.E.3d 802 [2021] ), and the narrow exception to the preservation rule is inapplicable here (see People v. Devins, 206 A.D.3d 1365, 1366–1367, 168 N.Y.S.3d 898 [3d Dept. 2022] ; People v. Washington, 206 A.D.3d 1278, 1280, 170 N.Y.S.3d 329 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 538, 198 N.E.3d 781 [Oct. 27, 2022] ).
Egan Jr., J.P., Lynch, Aarons and McShan, JJ., concur. ORDERED that the judgment is affirmed.