Opinion
910 KA 18-01925
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Shane SEEMAN, Defendant-Appellant.
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, WINSLOW, BANNISTER, AND DEJOSEPH, 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 his Alford plea, of course of sexual conduct against a child in the second degree ( Penal Law § 130.80[1][a] ), defendant contends that his plea was involuntarily entered and that his waiver of the right to appeal is invalid. Because a challenge to the voluntariness of a plea survives even a valid waiver of the right to appeal (see People v. Burney , 41 A.D.3d 1221, 1221, 838 N.Y.S.2d 278 [4th Dept. 2007], lv denied 9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199 [2007] ), there is no reason for us to address the validity of the waiver in this case. We note, however, that "the Model Colloquy for the waiver of right to appeal drafted by the Unified Court System's Criminal Jury Instructions and Model Colloquy Committee neatly synthesizes [Court of Appeals] precedent and the governing principles and provides a solid reference for a better practice" ( People v. Thomas , 34 N.Y.3d 545, 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ).
Defendant contends that his plea was involuntarily entered because County Court misinformed him during the plea colloquy that he would be sentenced as a second felony offender. Because he did not move to withdraw his plea or to vacate the judgment of conviction, however, defendant failed to preserve that contention for our review (see People v. Tchiyuka , 160 A.D.3d 1488, 1488-1489, 76 N.Y.S.3d 340 [4th Dept. 2018] ; People v. Miller , 87 A.D.3d 1303, 1303-1304, 930 N.Y.S.2d 143 [4th Dept. 2011], lv denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967 [2012] ; People v. Elardo , 52 A.D.3d 1272, 1272, 858 N.Y.S.2d 633 [4th Dept. 2008], lv denied 11 N.Y.3d 787, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ). In any event, the contention plainly lacks merit inasmuch as the court, upon realizing its mistake with respect to defendant's status as a second felony offender, advised defendant of the error and afforded him the opportunity to withdraw his plea (cf. People v. Young , 301 A.D.2d 754, 754, 753 N.Y.S.2d 233 [3d Dept. 2003], lv denied 99 N.Y.2d 634, 760 N.Y.S.2d 116, 790 N.E.2d 290 [2003] ). Defendant declined that opportunity and said that he still wished to accept the plea agreement.