Opinion
146 KA 18–01782
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Eulese CRUZ, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (ZAKARY I. WOODRUFF OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (ZAKARY I. WOODRUFF OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ). As the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as the perfunctory inquiry made by County Court was "insufficient to establish that the court engage[d] ... defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Soutar , 170 A.D.3d 1633, 1634, 94 N.Y.S.3d 899 [4th Dept. 2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 430 [2019] [internal quotation marks omitted]; see People v. Lewis [appeal No. 1], 161 A.D.3d 1588, 1588, 72 N.Y.S.3d 919 [4th Dept. 2018] ; People v. Brown , 296 A.D.2d 860, 860, 745 N.Y.S.2d 368 [4th Dept. 2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002] ). Although defendant signed a written waiver of the right to appeal, the court did not "explain the written waiver to defendant or ascertain that he understood its contents" ( People v. Madden , 148 A.D.3d 1576, 1577, 52 N.Y.S.3d 176 [4th Dept. 2017], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017] ; see People v. Peterkin , 153 A.D.3d 1568, 1569, 61 N.Y.S.3d 398 [4th Dept. 2017] ), and a "written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal" ( People v. Banks , 125 A.D.3d 1276, 1277, 2 N.Y.S.3d 714 [4th Dept. 2015], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015] [internal quotation marks omitted]; see People v. Wilson , 159 A.D.3d 1542, 1543, 73 N.Y.S.3d 715 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ).
Defendant correctly concedes that, by failing to move to withdraw his guilty plea or to vacate the judgment of conviction, he failed to preserve for our review his contention that the plea was not voluntarily, knowingly, and intelligently entered (see People v. Graham , 175 A.D.3d 1823, 1824, 109 N.Y.S.3d 541 [4th Dept. 2019], lv denied 34 N.Y.3d 1159, 120 N.Y.S.3d 258, 142 N.E.3d 1160 [2020] ; People v. Jones , 175 A.D.3d 1845, 1845–1846, 109 N.Y.S.3d 774 [4th Dept. 2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 132, 139 N.E.3d 790 [2019] ) and, contrary to defendant's contention, nothing in the plea colloquy "casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We therefore conclude that this case does not fall within the rare exception to the preservation requirement (see id. ).
Contrary to the further contention of defendant, the sentence is not unduly harsh or severe. As the People correctly concede, however, the certificate of conviction and the uniform sentence and commitment form should be amended because they incorrectly reflect that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v. Ortega , 175 A.D.3d 1810, 1811, 109 N.Y.S.3d 800 [4th Dept. 2019] ; People v. Oberdorf , 136 A.D.3d 1291, 1292–1293, 24 N.Y.S.3d 545 [4th Dept. 2016], lv denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ).