Opinion
11-18-2016
The PEOPLE of the State of New York, Respondent, v. Tywan HOWINGTON, Defendant–Appellant.
Lucille M. Rignanese, DeWitt, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), for Respondent.
Lucille M. Rignanese, DeWitt, for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). 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. Garcia–Cruz, 138 A.D.3d 1414, 1414, 30 N.Y.S.3d 427, lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 ; People v. Dudden, 138 A.D.3d 1452, 1453, 30 N.Y.S.3d 448, lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 ). Here, the court failed to ensure that defendant “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Nevertheless, by failing to move to withdraw the plea or to vacate the judgment of conviction, defendant has failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Bertollini [Appeal No. 2], 141 A.D.3d 1163, 1164, 37 N.Y.S.3d 649 ; People v. Allen, 137 A.D.3d 1719, 1719, 27 N.Y.S.3d 413, lv. denied 27 N.Y.3d 1127, 39 N.Y.S.3d 109, 61 N.E.3d 508 ). In any event, we conclude that “the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea” (People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ).
Defendant's challenge to the legal sufficiency of the evidence before the grand jury does not survive the guilty plea (see People v. Gillett, 105 A.D.3d 1444, 1445, 963 N.Y.S.2d 906 ; People v. Lawrence, 273 A.D.2d 805, 805, 710 N.Y.S.2d 262, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370 ; see generally People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656 ). Defendant's challenge to the sufficiency of the factual allegations in the indictment likewise does not survive the guilty plea (see People v. Sims, 129 A.D.3d 1509, 1510, 12 N.Y.S.3d 682, lv. denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 ; People v. Holt, 173 A.D.2d 644, 645, 571 N.Y.S.2d 1001 ; see generally Iannone, 45 N.Y.2d at 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656 ).It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.