Opinion
08-09-2017
The PEOPLE, etc., respondent, v. Miriam HUMBACH, appellant.
Joseph W. Carbonaro, Bronxville, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Laurie Sapakoff, Steven Bender, and James Tobin of counsel), for respondent.
Joseph W. Carbonaro, Bronxville, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Laurie Sapakoff, Steven Bender, and James Tobin of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered June 10, 2014, convicting her of criminal contempt in the first degree and criminal contempt in the second degree, upon her plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, she knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339–340, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 142, 992 N.Y.S.2d 297 ; People v. Ramsey, 116 A.D.3d 717, 717, 983 N.Y.S.2d 103 ).
The defendant's waiver of her right to appeal does not foreclose review of her contention that the County Court failed to conduct a sufficient inquiry to determine whether she violated a presentence condition of her plea agreement when she was arrested for a new crime and whether there was a legitimate basis for that arrest, or her further contention that the court improperly conducted a portion of that inquiry outside of her presence (see People v. Perez, 140 A.D.3d 799, 799, 30 N.Y.S.3d 918 ; People v. Cousar, 128 A.D.3d 716, 716, 9 N.Y.S.3d 96 ; People v. Arrington, 94 A.D.3d 903, 903, 941 N.Y.S.2d 877 ). However, the defendant failed to preserve these issues for appellate review, since she did not request a hearing, object to the adequacy of the inquiry conducted by the court, object to the procedure employed by the court, or move to withdraw her plea of guilty (see CPL 470.05[2] ; People v. Reynolds, 27 N.Y.3d 1099, 1101, 36 N.Y.S.3d 63, 55 N.E.3d 1036 ; People v. Douglas, 94 N.Y.2d 807, 808, 701 N.Y.S.2d 305, 723 N.E.2d 54 ; People v. Cousar, 128 A.D.3d at 716, 9 N.Y.S.3d 96 ; People v. Ali O., 115 A.D.3d 1353, 1353–1354, 983 N.Y.S.2d 389 ; People v. Stafford, 115 A.D.3d 683, 683, 981 N.Y.S.2d 566 ; People v. Miles, 268 A.D.2d 489, 490, 703 N.Y.S.2d 491 ). The defendant's failure to raise these contentions before the County Court deprived both the People and the court of the opportunity to address and remedy the alleged errors. Under the circumstances, we decline to review these contentions in the exercise of our interest of justice jurisdiction (see generally People v. Chatman, 14 A.D.3d 620, 620, 789 N.Y.S.2d 208 ; People v. Brooks, 217 A.D.2d 492, 492, 630 N.Y.S.2d 49 ; People v. Prescott, 191 A.D.2d 521, 595 N.Y.S.2d 58 ).
The defendant's contention that her plea of guilty was not voluntary also survives her waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Espejo, 145 A.D.3d 1031, 1031–1032, 42 N.Y.S.3d 862 ). However, the defendant failed to preserve this contention for appellate review since she did not move to withdraw her plea on this ground prior to the imposition of sentence (see CPL 220.60[3] ; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Spencer, 149 A.D.3d 983, 52 N.Y.S.3d 430 ). Under the circumstances, we decline to review this issue in the exercise of our interest of justice jurisdiction.
Finally, since the defendant was informed of the maximum sentence that could be imposed if she failed to comply with the conditions of her interim probation, the valid waiver of her right to appeal encompasses her claim that the enhanced sentence was excessive (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 ; People v. Perez, 140 A.D.3d 799, 800, 30 N.Y.S.3d 918 ).
MASTRO, J.P., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.