Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Jurell D. BARBER, Defendant–Appellant. (Appeal No. 1.)
Peter J. DiGiorgio, Jr., Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Peter J. DiGiorgio, Jr., Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, and WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30[2] ) and, in appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (§ 265.03[3] ). Defendant contends in both appeals that his waiver of the right to appeal is invalid. We reject that contention. The record establishes that County Court “ ‘engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” ( People v. Ripley, 94 A.D.3d 1554, 1554, 942 N.Y.S.2d 919,lv. denied19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769;see People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794,lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915), and that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;Ripley, 94 A.D.3d at 1554, 942 N.Y.S.2d 919;People v. Korber, 89 A.D.3d 1543, 1543, 932 N.Y.S.2d 780,lv. denied19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436). Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence in appeal No. 1 ( see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Although defendant's contention in appeal No. 2 that his guilty plea was not knowing, voluntary and intelligent survives his waiver of the right to appeal, defendant failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction ( see People v. Theall, 109 A.D.3d 1107, 1107–1108, 971 N.Y.S.2d 753;People v. Rossborough, 101 A.D.3d 1775, 1776, 956 N.Y.S.2d 389;People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587,lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449), and this case does not fall within the narrow exception to the preservation requirement ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). Although defendant stated during the plea colloquy that he possessed the weapon in his home, he further admitted that he “ha[d] been previously convicted of a [ ] crime” (Penal Law § 265.02[1]; see§ 265.03[3]; see generally People v. Hughes, 22 N.Y.3d 44, 49–50, 978 N.Y.S.2d 97, 1 N.E.3d 298). Where, as here, “the defendant has a previous conviction, the [home exception] never comes into play, [and] its inapplicability is not an element of the offense” ( People v. Jones, 22 N.Y.3d 53, 60, 977 N.Y.S.2d 739, 999 N.E.2d 1184).
Finally, defendant contends in appeal No. 2 that the indictment was jurisdictionally defective because it did not allege that the home exception was inapplicable ( seePenal Law § 265.03[3] ). Although that contention survives his waiver of the right to appeal ( see People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656;People v. Holmes, 101 A.D.3d 1632, 1633, 956 N.Y.S.2d 365,lv. denied21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140;People v. Crummell, 84 A.D.3d 1393, 1394, 924 N.Y.S.2d 290,lv. denied17 N.Y.3d 858, 932 N.Y.S.2d 23, 956 N.E.2d 804), it is without merit ( see Jones, 22 N.Y.3d at 60, 977 N.Y.S.2d 739, 999 N.E.2d 1184).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.