Opinion
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Jordan L. MCMURTRY, Defendant-Appellant.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT. DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered July 25, 2022. The judgment convicted defendant upon a plea of guilty of criminal possession of a controlled substance in the third degree, driving while ability impaired by drugs and use of a child in a sexual performance.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
[1] Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [2]), use of a child in a sexual performance (§ 263.05) and driving while ability impaired by drugs as a class E felony (Vehicle and Traffic Law §§ 1192 [4]; 1193 [1] [c] [i] [A]). We conclude that defendant knowingly, voluntarily and intelligently waived her right to appeal (see People v. Thomas, 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied — U.S.—, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]; People v. Benjamin, 216 A.D.3d 1457, 1457, 186 N.Y.S.3d 876 [4th Dept. 2023]), and that waiver encompasses her challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).
[2, 3] Although defendant’s challenge to the voluntariness of her plea survives her valid waiver of the right to appeal (see People v. Gimenez, 59 A.D.3d 1088, 1088-1089, 872 N.Y.S.2d 625 [4th Dept. 2009], lv denied 12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009]), the contention that, during the plea colloquy, County Court made misstatements regarding the promised sentence for driving while ability impaired by drugs and regarding the possibility of imposing consecutive sentences if defendant failed to comply with the Outlay warnings is not preserved for our review because defendant did not move to withdraw the plea or to vacate the judgment of conviction on those grounds (see People v. Halsey, 108 A.D.3d 1123, 1124, 968 N.Y.S.2d 309 [4th Dept. 2013]). Additionally, defendant’s contention that her guilty plea was not knowing, voluntary and intelligent because the court failed to inform her that she was losing her voting rights is raised for the first time in her reply brief and is thus not properly before us (see generally People v. James, 162 A.D.3d 1746, 1747, 80 N.Y.S.3d 600 [4th Dept. 2018], lv denied 32 N.Y.3d 1112, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018]; People v. Daigler, 148 A.D.3d 1685, 1686, 51 N.Y.S.3d 278 [4th Dept. 2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017]).