Opinion
70 KA 21-00580
06-09-2023
The PEOPLE of the State of New York, Respondent, v. Ibrahim AMIN, Defendant-Appellant.
TEODORO SIGUENZA, ROCHESTER, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
TEODORO SIGUENZA, ROCHESTER, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of sexual abuse in the first degree ( Penal Law § 130.65 [1] ), defendant contends, inter alia, that he was denied effective assistance of counsel and that Supreme Court misconstrued the sentencing parameters.
Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v. Shaffer , 210 A.D.3d 1452, 1452-1453, 176 N.Y.S.3d 515 [4th Dept. 2022] ; People v. Rivera , 195 A.D.3d 1591, 1591, 145 N.Y.S.3d 910 [4th Dept. 2021], lv denied 37 N.Y.3d 995, 152 N.Y.S.3d 402, 174 N.E.3d 342 [2021] ), his contention that he was denied effective assistance of counsel "does not survive his plea of guilty inasmuch as ‘[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney[s’] allegedly poor performance’ " ( People v. Jackson , 99 A.D.3d 1240, 1240, 951 N.Y.S.2d 449 [4th Dept. 2012], lv denied 20 N.Y.3d 987, 958 N.Y.S.2d 702, 982 N.E.2d 622 [2012] ; see People v. Burke , 256 A.D.2d 1244, 1244, 682 N.Y.S.2d 650 [4th Dept. 1998], lv denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097 [1999] ; see generally People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ).
Defendant further contends that his plea was not knowing, voluntary, and intelligent. Defendant's contention is unpreserved (see People v. Brown , 204 A.D.3d 1519, 1519-1520, 167 N.Y.S.3d 293 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 456, 191 N.E.3d 408 [2022] ; People v. Newsome , 198 A.D.3d 1357, 1357-1358, 155 N.Y.S.3d 260 [4th Dept. 2021], lv denied 37 N.Y.3d 1147, 159 N.Y.S.3d 342, 180 N.E.3d 506 [2021] ; People v. Romanowski , 196 A.D.3d 1081, 1081-1082, 149 N.Y.S.3d 740 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 432, 175 N.E.3d 457 [2021] ) and does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]. To the extent that defendant contends that his plea was not knowing, voluntary, and intelligent because the court inaccurately described its sentencing discretion, preservation is not required (see generally People v. Garcia-Cruz , 138 A.D.3d 1414, 1415, 30 N.Y.S.3d 427 [4th Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; People v. Brooks , 128 A.D.3d 1467, 1468, 8 N.Y.S.3d 797 [4th Dept. 2015] ), but we conclude that this part of defendant's contention is without merit (see generally Garcia-Cruz , 138 A.D.3d at 1415, 30 N.Y.S.3d 427 ; People v. Halsey , 108 A.D.3d 1123, 1124, 968 N.Y.S.2d 309 [4th Dept. 2013] ; People v. Morrison , 78 A.D.3d 1615, 1616, 911 N.Y.S.2d 541 [4th Dept. 2010], lv denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ).
Defendant additionally contends that he was denied due process at sentencing based on the failure of the court to sua sponte appoint an interpreter. That contention is without merit. There is no indication in this record that defendant "lacked a sufficient understanding of English" ( People v. Rodriguez , 123 A.D.3d 495, 495, 998 N.Y.S.2d 186 [1st Dept. 2014] ; see People v. Rosario , 93 A.D.3d 605, 605-606, 941 N.Y.S.2d 122 [1st Dept. 2012], lv denied 19 N.Y.3d 867, 947 N.Y.S.2d 416, 970 N.E.2d 439 [2012], reconsideration denied 20 N.Y.3d 935, 957 N.Y.S.2d 695, 981 N.E.2d 292 [2012] ; see generally People v. Ceravolo , 162 A.D.2d 979, 979, 557 N.Y.S.2d 204 [4th Dept. 1990], lv denied 76 N.Y.2d 892, 561 N.Y.S.2d 554, 562 N.E.2d 879 [1990] ). The court thus had no obligation to provide defendant with an interpreter (see People v. Ramos , 26 N.Y.2d 272, 275, 309 N.Y.S.2d 906, 258 N.E.2d 197 [1970] ; People v. Adamez , 177 A.D.2d 980, 980, 578 N.Y.S.2d 1 [4th Dept. 1991], lv denied 79 N.Y.2d 852, 580 N.Y.S.2d 724, 588 N.E.2d 759 [1992] ).
We agree with defendant, however, that he was deprived of "the right to be sentenced as provided by law" inasmuch as the court failed to apprehend the extent of its sentencing discretion ( People v. Hager , 213 A.D.2d 1008, 1008, 625 N.Y.S.2d 972 [4th Dept. 1995] ; see People v. Long , 188 A.D.3d 1663, 1664, 132 N.Y.S.3d 376 [4th Dept. 2020] ; People v. Davis , 115 A.D.3d 1239, 1239-1240, 982 N.Y.S.2d 272 [4th Dept. 2014] ). That contention would survive even a valid waiver of the right to appeal and does not require preservation (see Long , 188 A.D.3d at 1664, 132 N.Y.S.3d 376 ; People v. Pearson , 166 A.D.3d 1586, 1586-1587, 85 N.Y.S.3d 915 [4th Dept. 2018] ). On the merits, we agree with defendant that the court failed to apprehend its sentencing discretion. Prior to the plea colloquy, the court indicated that a sentence other than a determinate term of imprisonment followed by postrelease supervision could be considered only upon a showing of "mitigating circumstances." That was error because, upon a conviction of sexual abuse in the first degree, a class D violent felony offense, a determinate term of imprisonment is not mandatory (see Penal Law §§ 70.02 [2] [b] ; 70.80 [4] [b], [c]; see generally People v. Endresz , 1 A.D.3d 888, 888-889, 767 N.Y.S.2d 732 [4th Dept. 2003] ; People v. Housman , 291 A.D.2d 665, 666, 737 N.Y.S.2d 699 [3d Dept. 2002], lv denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840 [2002] ) unless a defendant pleads guilty to that crime in satisfaction of an indictment charging the defendant with an armed felony (see § 70.02 [4] ), which was not the case here. We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing. In light of our determination, we do not consider defendant's remaining contention.