Opinion
111754
11-10-2022
The PEOPLE of the State of New York, Respondent, v. Ricky MCNEIL, Appellant.
Eric K. Schillinger, Albany, for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Eric K. Schillinger, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Clark, Aarons, Pritzker and Fisher, JJ.
MEMORANDUM AND ORDER
Aarons, J. Appeal from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered May 10, 2019, convicting defendant upon his plea of guilty of the crime of driving while intoxicated. In 2018, a vehicle was reported driving erratically on I–87 and ultimately drove off the road into a ditch in the Town of Saugerties, Ulster County. Defendant was observed at the scene, questioned, and failed a chemical breath test – establishing that his blood alcohol level was .10% – resulting in his arrest. Defendant had three prior convictions for driving while intoxicated (hereinafter DWI) within the preceding 15 years and required the use of an ignition interlock system and, consequently, was charged by indictment with DWI, aggravated unlicensed operation of a motor vehicle in the first degree and circumvention of an interlock device. In full satisfaction of the indictment, defendant pleaded guilty to count 1 charging him with DWI with the understanding that he would be sentenced to a prison term of 1½ to 4½ years. Pursuant to this plea agreement, defendant purportedly waived his right to appeal both orally and in writing. County Court then imposed the agreed-upon prison term. Defendant appeals.
We affirm. As defendant contends, his waiver of the right to appeal is invalid. County Court utilized overbroad language in its oral colloquy while explaining defendant's right to appeal by stating that once defendant waived this right, it was "gone forever" (see People v. Carney, 207 A.D.3d 1000, 1000, 172 N.Y.S.3d 243 [3d Dept. 2022] ; People v. Hawkins, 207 A.D.3d 814, 815, 170 N.Y.S.3d 732 [3d Dept. 2022] ; People v. Goodwalt, 205 A.D.3d 1070, 1071, 167 N.Y.S.3d 250 [3d Dept. 2022], lv denied 38 N.Y.3d 1071, 171 N.Y.S.3d 452, 191 N.E.3d 404 [2022] ). Further, the written waiver executed by defendant claimed to be "a complete and final disposition of th[e] case." Because the court mischaracterized the rights to be waived and also "failed to ensure that defendant understood the distinction that some appellate review survived the appeal waiver" ( People v. Carney, 207 A.D.3d at 1000, 172 N.Y.S.3d 243 [internal quotation marks and citations omitted]; see People v. Streater, 207 A.D.3d 952, 953–954, 172 N.Y.S.3d 238 [3d Dept. 2022] ), the appeal waiver is not valid.
Although defendant's challenge to the factual sufficiency of the plea allocution is not foreclosed, it is nevertheless unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Linear, 200 A.D.3d 1498, 1499, 159 N.Y.S.3d 233 [3d Dept. 2021], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 477, 185 N.E.3d 998 [2022] ). The narrow exception to the preservation rule is inapplicable as it "applies only where a recitation of facts casts significant doubt on a defendant's guilt and not, as here, where the sufficiency of the articulation of the element is challenged" ( People v. Greene, 207 A.D.3d 804, 805, 170 N.Y.S.3d 729 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1150, 174 N.Y.S.3d 45, 194 N.E.3d 752 [2022] ). In any event, defendant "was not required to recite the elements of his crime or engage in a factual exposition, as his affirmative and unequivocal responses to the inquiries posed to him were sufficient to establish his guilt" ( People v. Ridge, 201 A.D.3d 1205, 1207, 159 N.Y.S.3d 771 [3d Dept. 2022] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 38 N.Y.3d 1153, 174 N.Y.S.3d 18, 194 N.E.3d 725 [2022] ; see People v. Rubert, 206 A.D.3d 1378, 1380, 170 N.Y.S.3d 346 [3d Dept. 2022] ). Nor are we persuaded that County Court lacked geographic jurisdiction. Although not waived by his guilty plea (see People v. Kellerman, 102 A.D.2d 629, 630–631, 479 N.Y.S.2d 815 [3d Dept. 1984] ), the location of defendant's criminal conduct was established by the record to be within Ulster County and was sufficiently set forth in the indictment to which defendant pleaded guilty (see CPL 20.40[1][a] ; People v. Decker, 139 A.D.3d 1113, 1115 n. 1, 30 N.Y.S.3d 751 [3d Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; People v. White, 104 A.D.3d 1056, 1057, 961 N.Y.S.2d 603 [3d Dept. 2013], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ).
Garry, P.J., Clark, Pritzker and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.