Opinion
No. 76 KA 21-01400
03-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL S. SAWYER, DEFENDANT-APPELLANT.
STEVEN A. FELDMAN, MANHASSET, FOR DEFENDANT-APPELLANT. MACKENZIE STUTZMAN, SPECIAL DISTRICT ATTORNEY, PENN YAN, FOR RESPONDENT.
STEVEN A. FELDMAN, MANHASSET, FOR DEFENDANT-APPELLANT.
MACKENZIE STUTZMAN, SPECIAL DISTRICT ATTORNEY, PENN YAN, FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, BANNISTER, AND OGDEN, JJ.
Appeal from a judgment of the Steuben County Court (Philip J. Roche, J.), rendered October 29, 2019. The judgment convicted defendant upon his plea of guilty of attempted kidnapping in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of attempted kidnapping in the first degree (Penal Law §§ 110.00, 135.25 [2] [a]), defendant contends that his waiver of the right to appeal is not valid and that his felony guilty plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise him of the potential deportation consequences of such a plea, as required by People v Peque (22 N.Y.3d 168 [2013], cert denied 574 U.S. 840 [2014]). We affirm.
Initially, defendant's contention regarding the voluntariness of his plea survives his purported waiver of the right to appeal (see People v Roman, 160 A.D.3d 1492, 1492 [4th Dept 2018]; see generally People v Burtes, 151 A.D.3d 1806, 1807 [4th Dept 2017], lv denied 30 N.Y.3d 978 [2017]). Furthermore, "preservation was not required inasmuch as the record bears no indication that defendant knew about the possibility of deportation" (Roman, 160 A.D.3d at 1492; see Peque, 22 N.Y.3d at 183). Nevertheless, we reject defendant's contention on the merits inasmuch as "nothing in the record contradicts the... information in the Department of Probation Presentence Investigation Report indicating that defendant was a United States citizen" (People v Brooks, 187 A.D.3d 931, 932 [2d Dept 2020], lv denied 36 N.Y.3d 970 [2020]; see People v Rolling, 186 A.D.3d 1264, 1265 [2d Dept 2020], lv denied 36 N.Y.3d 931 [2020]; People v Tull, 159 A.D.3d 1387, 1387-1388 [4th Dept 2018]; see generally Peque, 22 N.Y.3d at 176).
Defendant further contends that the court erred in calculating the expiration date of the order of protection issued against him. Defendant's contention regarding the order of protection also would survive a valid waiver of the right to appeal (see People v Austin, 199 A.D.3d 1383, 1384 [4th Dept 2021], lv denied 37 N.Y.3d 1159 [2022]), but that contention is unpreserved (see id.; People v Tidd, 81 A.D.3d 1405, 1406 [4th Dept 2011]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Defendant additionally contends that his sentence is unduly harsh and severe and constitutes cruel and unusual punishment. With regard to defendant's contention that his sentence constitutes cruel and unusual punishment, even assuming, arguendo, that the waiver of the right to appeal is invalid and therefore does not foreclose our review of that contention (cf. People v Warner, 167 A.D.3d 1492, 1493 [4th Dept 2018], lv denied 33 N.Y.3d 955 [2019]; People v Marshall, 144 A.D.3d 1544, 1545 [4th Dept 2016]), defendant failed to preserve his contention for our review (see People v Thompson, 206 A.D.3d 1708, 1710 [4th Dept 2022], lv denied 38 N.Y.3d 1153 [2022], citing People v Pena, 28 N.Y.3d 727, 730 [2017]; People v Pruitt, 169 A.D.3d 1367, 1368 [4th Dept 2019]). We decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). Finally, assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of the sentence (see People v Congdon, 204 A.D.3d 1516, 1517 [4th Dept 2022], lv denied 38 N.Y.3d 1070 [2022]; People v Love, 181 A.D.3d 1193, 1193 [4th Dept 2020]), we conclude that the sentence is not unduly harsh or severe.