Opinion
107736.
08-10-2017
The PEOPLE of the State of New York, Respondent, v. Jeffrey HOPPER Jr., Appellant.
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant, and appellant pro se. Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant, and appellant pro se.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, LYNCH, ROSE and DEVINE, JJ.
McCARTHY, J.P.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered November 7, 2014, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
In satisfaction of a multicount indictment, defendant pleaded guilty to one count of burglary in the second degree and waived his right to appeal. County Court sentenced him as a second felony offender to seven years in prison, to be followed by five years of postrelease supervision. Defendant appeals, and we now affirm.
Initially, we find that defendant's waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344[2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). During the plea colloquy, County Court ascertained that defendant had adequate opportunity to discuss the plea agreement with counsel, understood the terms and was voluntarily waiving his right to appeal as part of the plea bargain (see People v. Belile, 137 A.D.3d 1460, 1461, 27 N.Y.S.3d 738 [2016] ). County Court further ascertained that defendant understood that he was giving up his right to appeal, explained the appellate rights that could not be waived and ascertained that defendant understood that the appeal waiver was separate and distinct from those rights that he automatically forfeited by his guilty plea (see People v. Lopez, 6 N.Y.3d at 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Belile, 137 A.D.3d at 1461, 27 N.Y.S.3d 738 ; People v. Rushlow, 137 A.D.3d 1482, 1483, 28 N.Y.S.3d 476 [2016] ). Defendant executed a written waiver of appeal in open court that indicated that he had sufficient time to discuss the waiver with counsel (see People v. Belile, 137 A.D.3d at 1461, 27 N.Y.S.3d 738 ; People v. Lyman, 119 A.D.3d 968, 969, 988 N.Y.S.2d 717 [2014], lv. denied 27 N.Y.3d 1153, 39 N.Y.S.3d 387, 62 N.E.3d 127 [2016] ). Considering the foregoing, defendant demonstrated his understanding and voluntary waiver of his right to appeal (see People v. Empey, 144 A.D.3d 1201, 1202–1203, 41 N.Y.S.3d 164 [2016], lv. denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ; People v. Lester, 141 A.D.3d 951, 953, 36 N.Y.S.3d 288 [2016], lv. denied 28 N.Y.3d 1185, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ; People v. Belile, 137 A.D.3d at 1461, 27 N.Y.S.3d 738 ). We reject defendant's contention that his guilty plea was not knowing, voluntary and intelligent because County Court failed to inquire as to a potential intoxication defense. Although defendant's contention survives his valid appeal waiver, it is unpreserved for our review inasmuch as the record fails to reflect that defendant made an appropriate postallocution motion to withdraw his guilty plea (see CPL 220.60[3] ; People v. McCray, 139 A.D.3d 1235, 1235–1236, 31 N.Y.S.3d 659 [2016] ; People v. Buck, 136 A.D.3d 1117, 1118, 25 N.Y.S.3d 402 [2016] ). Moreover, defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or negated an essential element of the crime so as to trigger the narrow exception to the preservation requirement or to impose an obligation upon County Court to inquire as to a potential intoxication defense (see People v. Austin, 141 A.D.3d 956, 957, 35 N.Y.S.3d 580 [2016] ; People v. Buck, 136 A.D.3d at 1118, 25 N.Y.S.3d 402; People v. Brown, 125 A.D.3d 1049, 1049–1050, 2 N.Y.S.3d 699 [2015] ). Indeed, defendant did not at any point during the plea colloquy indicate that he was intoxicated at the time of the burglary and admitted without hesitation that he broke into a dwelling with the intent to commit a crime therein (see People v. Buck, 136 A.D.3d at 1118, 25 N.Y.S.3d 402; People v. Beblowski, 127 A.D.3d 1505, 1505, 8 N.Y.S.3d 467 [2015], lv. denied 26 N.Y.3d 926, 17 N.Y.S.3d 88, 38 N.E.3d 834 [2015] ; People v. Jones, 73 A.D.3d 1386, 1387, 900 N.Y.S.2d 797 [2010] ). Contrary to defendant's argument, the arrest report and witnesses' depositions submitted to County Court before the plea colloquy did not suggest that defendant was intoxicated at the time of the crime, and the postplea comments subsequently made by defendant during the Probation Department's presentence investigation regarding his intoxication do not impose a duty of inquiry upon County Court concerning a potential intoxication defense (see People v. Larock, 139 A.D.3d 1241, 1242, 31 N.Y.S.3d 665 [2016], lv. denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ; People v. Buck, 136 A.D.3d at 1118 n. 2, 25 N.Y.S.3d 402; People v. Phillips, 30 A.D.3d 911, 911, 819 N.Y.S.2d 129 [2006], lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006] ).
Finally, defendant's valid appeal waiver precludes his challenge to the severity of the sentence imposed (see People v. Doggett, 146 A.D.3d 1172, 1173, 46 N.Y.S.3d 285 [2017], lv. denied 29 N.Y.3d 1031, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017] ; People v. McCall, 146 A.D.3d 1156, 1157, 44 N.Y.S.3d 795 [2017], lvs. denied 29 N.Y.3d 1033, 1034, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017] ; People v. Belile, 137 A.D.3d at 1461, 27 N.Y.S.3d 738 ). Defendant's remaining contentions have been examined and found to be lacking in merit.
ORDERED that the judgment is affirmed.
GARRY, LYNCH, ROSE and DEVINE, JJ., concur.