Opinion
2019–02149 Ind. No. 465/18
12-16-2020
The PEOPLE, etc., respondent, v. Daquan STINSON, appellant.
Judith E. Permutt, Mount Vernon, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio of counsel), for respondent.
Judith E. Permutt, Mount Vernon, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio of counsel), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, PAUL WOOTEN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Westchester County (George E. Fufidio, J.), rendered December 4, 2018, convicting him of attempted gang assault in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Thomas , 34 N.Y.3d 545, 559–565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The County Court's oral colloquy mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief (see People v. Thomas , 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Howard , 183 A.D.3d 640, 121 N.Y.S.3d 622 ). The court failed to clarify that select issues survive the appeal waiver (see People v. Thomas , 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ), and did not explain that the appellate rights the defendant was waiving were separate and distinct from the rights automatically forfeited by pleading guilty (see People v. Chy , 184 A.D.3d 664, 665, 125 N.Y.S.3d 130 ). The written waiver and off-the-record conversation with the defendant's counsel were insufficient to cure the deficiencies in the oral colloquy and were not a proper substitute for the court's on-the-record explanation of the nature of the right to appeal (see People v. Brown , 122 A.D.3d 133, 138–139, 992 N.Y.S.2d 297 ; People v. Bradshaw , 76 A.D.3d 566, 569, 906 N.Y.S.2d 93 ). Accordingly, the defendant's purported appeal waiver is invalid (see People v. Thomas , 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
Nevertheless, the defendant's challenge to the County Court's Sandoval ruling (see People v. Sandoval , 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) is not properly before this Court, as the defendant's plea of guilty foreclosed appellate review of this claim (see People v. Sirico , 135 A.D.3d 19, 24, 18 N.Y.S.3d 430 ; People v. Johnson , 104 A.D.3d 705, 706, 960 N.Y.S.2d 206 ; People v. Gerber , 182 A.D.2d 252, 260, 589 N.Y.S.2d 171 ).
Furthermore, the defendant's contention that his plea of guilty was not voluntary because he was coerced by the Sandoval ruling is not preserved for appellate review, as he did not move to withdraw the plea or otherwise object to it prior to sentencing (see CPL 470.05[2] ; People v. Murray , 186 A.D.3d 625, 666, 126 N.Y.S.3d 665 ), and he did not move to vacate his judgment of conviction in the County Court (see CPL 440.10 ; People v. Peque , 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). In any event, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Strongminton , 169 A.D.3d 723, 91 N.Y.S.3d 710 ; People v. Bryant , 159 A.D.3d 715, 716, 69 N.Y.S.3d 496 ).
MASTRO, J.P., MILLER, DUFFY, LASALLE and WOOTEN, JJ., concur.