Opinion
1033 KA 19-01046
12-23-2021
The PEOPLE of the State of New York, Respondent, v. John M. GRABOWSKI, also Known as John Michael Grabowski, also Known as John Grabowski, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, 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 Alford plea of guilty, of rape in the first degree ( Penal Law § 130.35 [4] ). We agree with defendant that his "waiver of the right to appeal was invalid, because [it] encompassed post-conviction motions" ( People v. Suarez-Montoya , 183 A.D.3d 765, 765, 121 N.Y.S.3d 914 [2d Dept. 2020] ; see People v. Byrd , 181 A.D.3d 1183, 1184, 118 N.Y.S.3d 466 [4th Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 27, 149 N.E.3d 865 [2020] ). The sentence, however, is not unduly harsh or severe. Defendant's contention that County Court improperly penalized him at sentencing for taking an Alford plea is unpreserved for appellate review (see generally People v. Hurley , 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 [1990] ). Finally, the certificate of conviction incorrectly states that defendant pleaded guilty on April 25, 2019, and it must therefore be amended to reflect the correct date of March 25, 2019.