Opinion
2019–12009, 2022–04380 Ind. No. 1475/18
06-08-2022
The PEOPLE, etc., respondent, v. Terrell BERRY, appellant.
Steven A. Feldman, Manhasset, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel), for respondent.
Steven A. Feldman, Manhasset, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeals by the defendant from a judgment of the County Court, Suffolk County (Fernando Camacho, J.), rendered June 25, 2019, convicting him of criminal sale of a firearm in the first degree, criminal possession of a weapon in the first degree, criminal sale of a firearm in the third degree (12 counts), criminal possession of a weapon in the second degree (11 counts), criminal possession of a weapon in the third degree (5 counts), conspiracy in the fourth degree (2 counts), manufacture, transport, disposition, and defacement of weapons and dangerous instruments and appliances (5 counts), conspiracy in the fifth degree, attempted criminal sale of a firearm in the third degree, and criminal possession of a firearm, upon his plea of guilty, and a purported resentence of the same court imposed October 1, 2019. The notice of appeal from the judgment of conviction rendered June 25, 2019, is deemed to also be a premature notice of appeal from the purported resentence imposed October 1, 2019 (see CPL 460.10[6] ).
ORDERED that the judgment is affirmed; and it is further,
ORDERED that the purported resentence is reversed, on the law, and the matter is remitted to the County Court, Suffolk County, for resentencing in accordance herewith.
The defendant's valid waiver of the right to appeal does not bar him from raising his contentions concerning the voluntariness of his plea of guilty, since such claims 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. Broccoli, 152 A.D.3d 536, 54 N.Y.S.3d 875 ; People v. Solis, 111 A.D.3d 654, 655, 974 N.Y.S.2d 132 ; People v. Joseph, 103 A.D.3d 665, 959 N.Y.S.2d 261 ). However, the defendant's contentions regarding the voluntariness of his plea are unpreserved for appellate review (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 221–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Tyrell, 22 N.Y.3d 359, 363, 981 N.Y.S.2d 336, 4 N.E.3d 346 ). In any event, these contentions are without merit. The record demonstrates that the defendant's plea was knowing, voluntary, and intelligent (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Morales, 202 A.D.3d 997, 159 N.Y.S.3d 731 ; People v. Broccoli, 152 A.D.3d 536, 54 N.Y.S.3d 875 ).
However, the matter must be remitted to the County Court, Suffolk County, for resentencing. A defendant has a fundamental right to be "personally present at the time sentence is pronounced" ( CPL 380.40[1] ; see People v. Rossborough, 27 N.Y.3d 485, 488, 34 N.Y.S.3d 399, 54 N.E.3d 71 ). Here, the defendant was not produced at his purported resentencing proceeding and the record is devoid of any indication that he expressly waived his right to be present (see CPL 380.40 ; People v. Stewart, 28 N.Y.3d 1091, 1092, 45 N.Y.S.3d 318, 68 N.E.3d 43 ; People v. Rodriguez, 186 A.D.3d 625, 625, 126 N.Y.S.3d 913 ). Thus, as the People correctly concede, the County Court's failure to have the defendant produced for resentencing violated the defendant's fundamental right to be present at that time.
CONNOLLY, J.P., MALTESE, WOOTEN and GENOVESI, JJ., concur.