Opinion
06-17-2016
The PEOPLE of the State of New York, Respondent, v. Cordero R. GIBSON, Defendant–Appellant.
Dominic Saraceno, Buffalo, for Defendant–Appellant. Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of Counsel), for Respondent.
Dominic Saraceno, Buffalo, for Defendant–Appellant.
Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ). The conviction arises from an attempted robbery committed by defendant and a codefendant, during which the codefendant shot and killed a man. Defendant was charged with, inter alia, felony murder (§ 125.25[3] ), and he pleaded guilty to manslaughter in the first degree as a lesser included offense under the felony murder count. The factual allocution at the plea proceeding, however, established the elements of felony murder rather than those of manslaughter.
Initially, we conclude that defendant made a knowing, voluntary, and intelligent waiver of his right to appeal (see
People v. Adams, 94 A.D.3d 1428, 1428–1429, 942 N.Y.S.2d 833, lv. denied 19 N.Y.3d 970, 950 N.Y.S.2d 353, 973 N.E.2d 763 ; see generally People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ), and that the waiver encompasses his challenge to the severity of his sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 ; People v. Bailey, 137 A.D.3d 1620, 1621, 26 N.Y.S.3d 917 ; cf. People v. Maracle, 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ).
Defendant further contends that his plea of guilty was not knowingly, voluntarily, and intelligently entered. To the extent that defendant's contention survives his waiver of the right to appeal (see People v. Bishop, 115 A.D.3d 1243, 1244, 982 N.Y.S.2d 644, lv. denied 23 N.Y.3d 1018, 992 N.Y.S.2d 800, 16 N.E.3d 1280, reconsideration denied 24 N.Y.3d 1082, 1 N.Y.S.3d 8, 25 N.E.3d 345 ), we conclude that it is not preserved for our review inasmuch as his motion to withdraw his plea was made on grounds different from those advanced on appeal (see People v. Green, 132 A.D.3d 1268, 1268–1269, 17 N.Y.S.3d 807 ; cf. People v. Johnson, 23 N.Y.3d 973, 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 ).
We further conclude that this case does not fall within the “narrow exception” to the preservation rule (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Although the plea allocution did not establish every element of manslaughter in the first degree, it neither negated an essential element of that crime nor otherwise cast doubt on the voluntariness of the plea (see People v. Brown, 115 A.D.3d 1204, 1205–1206, 982 N.Y.S.2d 255, lv. denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 ; People v. Royal, 306 A.D.2d 886, 887, 760 N.Y.S.2d 917, lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 407, 799 N.E.2d 630 ), and no factual basis for a guilty plea is necessary where, as here, the defendant enters a negotiated plea to a lesser offense than that charged in the indictment (see Johnson,
23 N.Y.3d at 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 ; People v. Norman, 128 A.D.3d 1418, 1419, 7 N.Y.S.3d 813, lv. denied 27 N.Y.3d 1003 ). We note that a guilty plea to manslaughter in the first degree is permissible in satisfaction of a felony murder charge involving the same victim even though the former crime is not technically a lesser included offense of the latter (see People v. Adams, 57 N.Y.2d 1035, 1037–1038, 457 N.Y.S.2d 783, 444 N.E.2d 33 ; People v. Lebron, 238 A.D.2d 150, 150, 656 N.Y.S.2d 201, lv. denied 90 N.Y.2d 895, 662 N.Y.S.2d 438, 685 N.E.2d 219, cert. denied 522 U.S. 1032, 118 S.Ct. 635, 139 L.Ed.2d 614 ; see generally CPL 220.20 ; People v. Johnson, 89 N.Y.2d 905, 907–908, 653 N.Y.S.2d 265, 675 N.E.2d 1217 ), and we reject defendant's contention that the discrepancy between his plea to manslaughter and his allocution to felony murder, standing alone, is sufficient to undermine the validity of the plea (see People v. Foster, 19 N.Y.2d 150, 152–154, 278 N.Y.S.2d 603, 225 N.E.2d 200 ; People v. Torres, 125 A.D.2d 252, 253, 509 N.Y.S.2d 540, lv. denied 69 N.Y.2d 834, 513 N.Y.S.2d 1042, 506 N.E.2d 553 ; cf. Johnson, 23 N.Y.3d at 975–976, 989 N.Y.S.2d 680, 12 N.E.3d 1109 ; People v. Worden, 22 N.Y.3d 982, 985–986, 980 N.Y.S.2d 317, 3 N.E.3d 654 ). Contrary to defendant's further contention, we conclude that the court was not obligated to conduct any inquiry of him concerning the statutory affirmative defense to felony murder (see generally Penal Law § 125.25[3] ) because nothing in the plea colloquy raised the possibility that the affirmative defense was applicable in this case (see People v. Heyward, 111 A.D.2d 420, 420–421, 488 N.Y.S.2d 486 ; see generally People v. Hill, 128 A.D.3d 1479, 1480, 8 N.Y.S.3d 805, lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 ; People v. Masterson, 57 A.D.3d 1443, 1443, 871 N.Y.S.2d 534 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.