Opinion
108089
04-26-2018
The PEOPLE of the State of New York, Respondent, v. Edward A. WIDGER, Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.
Teresa C. Mulliken, Harpersfield, for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.
Before: McCarthy, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered September 4, 2014, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with burglary in the third degree. The People initially proposed that defendant plead guilty to the charged crime and waive his right to appeal in exchange for a prison term of 2 to 4 years. When defendant appeared for the plea colloquy, however, it was discovered that the proposed prison term was not a legal sentence for a first felony offender, and the People amended their offer to encompass a prison term of 2 to 6 years. After County Court apprised defendant of his maximum potential sentencing exposure, defense counsel requested and was granted an opportunity to confer with defendant's mother, who was present in the courtroom. Following that conversation, defendant expressed his desire to go forward, waived his right to appeal and, after assuring the court that he had been afforded sufficient time to confer with his mother and defense counsel, pleaded guilty to burglary in the third degree under the theory of acting in concert with his codefendants. County Court thereafter sentenced defendant to the agreed-upon prison term of 2 to 6 years. Defendant now appeals.
We affirm. Although defendant's challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal, it is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Jones, 146 A.D.3d 1078, 1080, 45 N.Y.S.3d 261 [2017], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ; People v. Walker, 135 A.D.3d 1244, 1244–1245, 23 N.Y.S.3d 485 [2016] ). Defendant's related claim—that the plea was factually deficient—"is precluded by the ... appeal waiver and, further, is similarly unpreserved" ( People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [2017] ; see People v. Robinson, 155 A.D.3d 1252, 1253, 64 N.Y.S.3d 740 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). Contrary to defendant's assertion, "the exception to the preservation rule is inapplicable inasmuch as defendant's recitation of the facts underlying the crime to which he pleaded guilty does not cast significant doubt on his guilt based on a theory of accessorial liability or call into question the voluntariness of his plea" ( People v. Frank, 100 A.D.3d 1145, 1146, 954 N.Y.S.2d 232 [2012] [internal citation omitted] ). Notably, "there is no legal distinction between liability as a principal and criminal culpability as an accessory," and defendant, by his own admission, readily acknowledged that he intended to participate in the burglary with his codefendants and that his role was to act as a lookout ( People v. King, 114 A.D.2d 424, 424, 494 N.Y.S.2d 343 [1985] ). Finally, the record plainly reflects that defendant was apprised—prior to pleading guilty—that the term of imprisonment initially contemplated (2 to 4 years) could not be honored because it constituted an illegal sentence; defendant was made aware of the corrected term of imprisonment that he would be facing (2 to 6 years), and counsel's request for an opportunity to discuss this development with defendant's mother was granted. Under these circumstances, we are satisfied that defendant "received the full benefit of his bargain" ( People v. Klein, 26 A.D.3d 530, 531, 809 N.Y.S.2d 264 [2006], lv denied 6 N.Y.3d 849, 816 N.Y.S.2d 755, 849 N.E.2d 978 [2006] ). Defendant's remaining arguments have been examined and found to be lacking in merit.
ORDERED that the judgment is affirmed.
McCarthy, J.P., Clark, Mulvey and Rumsey, JJ., concur.