Opinion
2014-02-5
The PEOPLE, etc., respondent, v. Chris NILSEN, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Toomey, J.), rendered October 17, 2012, convicting him of robbery in the third degree (two counts), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for resentencing.
Contrary to the defendant's contention, the County Court did not improperly delegate the appeal waiver allocution to the prosecutor ( see People v. Fowler, 111 A.D.3d 958, 975 N.Y.S.2d 691; People v. Bethune, 91 A.D.3d 966, 966–967, 937 N.Y.S.2d 596). Nevertheless, the defendant's purported waiver of the right to appeal was invalid ( see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and thus does not preclude review of the defendant's contentions on appeal.
However, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Barrett, 105 A.D.3d 862, 863, 962 N.Y.S.2d 673). Moreover, the “rare case” exception to the preservation requirement does not apply here because the defendant's allocution did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; see People v. Barrett, 105 A.D.3d at 863, 962 N.Y.S.2d 673). In any event, the plea allocution was factually sufficient ( see People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692; People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797).
As the People correctly concede, they failed to file a predicate felony statement before sentence was imposed as required by CPL 400.21(2), and this error was not harmless ( see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338; People v. Tatta, 177 A.D.2d 674, 675, 576 N.Y.S.2d 368). Accordingly, we vacate the sentence imposed, and remit the matter to the County Court, Suffolk County, for resentencing. We note that the plea minutes in this case do not indicate that the plea of guilty was negotiated with terms that included restitution.