Opinion
929 KA 18-00720
11-20-2020
The PEOPLE of the State of New York, RESPONDENT, v. Julio Z. RAMOS-PEREZ, DEFENDANT-APPELLANT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree ( Penal Law § 160.15 [3] ). Although defendant's contention that his plea was coerced by statements made by County Court or was otherwise involuntarily entered survives his waiver of the right to appeal (see People v. Mobayed , 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; People v. Sparcino , 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ; People v. Watkins , 77 A.D.3d 1403, 1403, 909 N.Y.S.2d 233 [4th Dept. 2010], lv denied 15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010] ), "defendant failed to preserve that contention for our review because ... he failed to move to withdraw the plea or to vacate the judgment of conviction" ( People v. Connolly , 70 A.D.3d 1510, 1511, 894 N.Y.S.2d 694 [4th Dept. 2010], lv denied 14 N.Y.3d 886, 903 N.Y.S.2d 775, 929 N.E.2d 1010 [2010] ; see Watkins , 77 A.D.3d at 1403, 909 N.Y.S.2d 233 ). In any event, that contention lacks merit. Defendant's contention "is belied by [his] responses to the court's questions during the plea colloquy, indicating that he was pleading guilty voluntarily and that no threats or promises had induced the plea" ( People v. Jenkins , 117 A.D.3d 1528, 1528-1529, 985 N.Y.S.2d 372 [4th Dept. 2014], lv denied 23 N.Y.3d 1063, 994 N.Y.S.2d 322, 18 N.E.3d 1143 [2014] [internal quotation marks omitted]; see People v. Toliver , 82 A.D.3d 1581, 1582, 919 N.Y.S.2d 256 [4th Dept. 2011], lv denied 17 N.Y.3d 802, 929 N.Y.S.2d 110, 952 N.E.2d 1105 [2011], reconsideration denied 17 N.Y.3d 862, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ). During the plea colloquy, defendant also acknowledged, inter alia, that he had sufficient time to review the plea offer with his attorney. Moreover, the record establishes that defendant had several weeks to consider the plea offer, that defendant and his attorney were in agreement that defendant should avail himself of the plea offer, and that defendant understood the nature and consequences of his actions (see generally Watkins , 77 A.D.3d at 1403-1404, 909 N.Y.S.2d 233 ).
Finally, we agree with defendant that, as the People correctly concede, his waiver of the right to appeal does not encompass his challenge to the severity of the sentence inasmuch as "no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence" ( People v. Tomeno , 141 A.D.3d 1120, 1120, 33 N.Y.S.3d 920 [4th Dept. 2016], lv denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] [internal quotation marks omitted]; see People v. Maracle , 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). We nevertheless conclude that the sentence is not unduly harsh or severe.