Opinion
291 KA 13-00828.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Jose GARCIA–CRUZ, Defendant–Appellant.
D.J. & J.A. Cirando, ESQS., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
D.J. & J.A. Cirando, ESQS., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, and SCUDDER, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the first degree (Penal Law § 140.30 [3] ). We agree with defendant that the waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the 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. Jones, 107 A.D.3d 1589, 1589, 966 N.Y.S.2d 724, lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [internal quotation marks omitted]; see People v. Amir W., 107 A.D.3d 1639, 1640, 969 N.Y.S.2d 289 ), and because “there is no basis upon which to conclude that the court ensured ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( Jones, 107 A.D.3d at 1590, 966 N.Y.S.2d 724, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). We nevertheless reject defendant's challenge to the severity of the sentence.
Defendant contends that he was denied his due process right to an interpreter at some proceedings, requiring reversal of the conviction. Upon our review of the record, we conclude that defendant, who was represented by counsel, failed to preserve his contention for our review because he never objected to the absence of an interpreter (see People v. Robles, 86 N.Y.2d 763, 764–765, 631 N.Y.S.2d 131, 655 N.E.2d 172 ; People v. Rivera, 15 A.D.3d 859, 860, 788 N.Y.S.2d 802, lv. denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 ). In any event, we conclude that there was only one preliminary court appearance during which an interpreter may not have been present, and defendant's presence at that appearance was not required (see generally People v. Dokes, 79 N.Y.2d 656, 660, 584 N.Y.S.2d 761, 595 N.E.2d 836 ). Thus, any translation for his benefit would have been unnecessary.
By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the plea was not voluntarily entered (see People v. Connolly, 70 A.D.3d 1510, 1511, 894 N.Y.S.2d 694, lv. denied 14 N.Y.3d 886, 903 N.Y.S.2d 775, 929 N.E.2d 1010 ). This case does not fall within the rare 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 “because nothing in the plea allocution calls into question the voluntariness of the plea or casts ‘significant doubt’ upon his guilt” (People v. Pitcher, 126 A.D.3d 1471, 1472, 6 N.Y.S.3d 352, lv. denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104, quoting Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). The statements made by defendant during his presentence interview and at sentencing regarding his possible intoxication during the offense did not require the court to conduct an inquiry regarding the voluntariness of the plea (see People v. Arney, 120 A.D.3d 949, 950, 990 N.Y.S.2d 752 ; Connolly, 70 A.D.3d at 1511, 894 N.Y.S.2d 694 ; People v. Kelly, 50 A.D.3d 921, 921, 854 N.Y.S.2d 674, lv. denied 10 N.Y.3d 960, 863 N.Y.S.2d 144, 893 N.E.2d 450 ). Further, although defendant's contention that the plea should be vacated because the court misstated the minimum period of postrelease supervision during the plea colloquy does not require preservation (see People v. Brooks, 128 A.D.3d 1467, 1468, 8 N.Y.S.3d 797 ), we conclude that the misstatement did not render the plea involuntary (see People v. Garcia, 92 N.Y.2d 869, 870–871, 677 N.Y.S.2d 772, 700 N.E.2d 311 ; cf. Brooks, 128 A.D.3d at 1468, 8 N.Y.S.3d 797 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.