Opinion
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.
MEMORANDUM AND ORDER 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, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [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, 72 N.Y.S.3d 899 [4th Dept. 2018] ; see generally People v. Burtes , 151 A.D.3d 1806, 1807, 58 N.Y.S.3d 766 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [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, 72 N.Y.S.3d 899 ; see Peque , 22 N.Y.3d at 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). 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, 130 N.Y.S.3d 365 [2d Dept. 2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 476, 162 N.E.3d 705 [2020] ; see People v. Rolling , 186 A.D.3d 1264, 1265, 127 N.Y.S.3d 874 [2d Dept. 2020], lv denied 36 N.Y.3d 931, 135 N.Y.S.3d 344, 159 N.E.3d 1111 [2020] ; People v. Tull , 159 A.D.3d 1387, 1387-1388, 72 N.Y.S.3d 675 [4th Dept. 2018] ; see generally Peque , 22 N.Y.3d at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).
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, 154 N.Y.S.3d 539 [4th Dept. 2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 719, 181 N.E.3d 1147 [2022] ), but that contention is unpreserved (see id. ; People v. Tidd , 81 A.D.3d 1405, 1406, 916 N.Y.S.2d 866 [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, 90 N.Y.S.3d 426 [4th Dept. 2018], lv denied 33 N.Y.3d 955, 100 N.Y.S.3d 179, 123 N.E.3d 838 [2019] ; People v. Marshall , 144 A.D.3d 1544, 1545, 41 N.Y.S.3d 337 [4th Dept. 2016] ), defendant failed to preserve his contention for our review (see People v. Thompson , 206 A.D.3d 1708, 1710, 169 N.Y.S.3d 438 [4th Dept. 2022], lv denied 38 N.Y.3d 1153, 174 N.Y.S.3d 34, 194 N.E.3d 741 [2022], citing People v. Pena , 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 [2017] ; People v. Pruitt , 169 A.D.3d 1367, 1368, 91 N.Y.S.3d 762 [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, 165 N.Y.S.3d 779 [4th Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 441, 191 N.E.3d 393 [2022] ; People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe.