Opinion
2017-261 D CR
02-20-2020
The PEOPLE of the State of New York, Respondent, v. Gerard X. SYKES, Appellant.
Dutchess County Public Defender (Larwence D. King of counsel), for appellant. Dutchess County District Attorney (Kirsten A. Rappleyea of counsel), for respondent.
Dutchess County Public Defender (Larwence D. King of counsel), for appellant.
Dutchess County District Attorney (Kirsten A. Rappleyea of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a misdemeanor complaint with criminal contempt in the second degree ( Penal Law § 215.50 [3] ). He subsequently moved to, among other things, preclude the People from using at trial certain statements allegedly made by him, on the ground that the People had failed to provide him with a timely CPL 710.30 notice. The People opposed the motion, and the Justice Court denied this branch of the motion. Thereafter, defendant pleaded guilty to the added charge of harassment in the second degree ( Penal Law § 240.26 [3] ) in satisfaction of the accusatory instrument and, as a condition of pleading guilty, defendant waived his right to appeal. At the same proceeding, the Justice Court imposed sentence.
On appeal, defendant contends that his plea was insufficient and should be vacated, since the court failed to advise him of all of the constitutional rights that he was forfeiting by pleading guilty. He further argues that his oral appeal waiver was deficient and, therefore, he is not precluded on appeal from raising his claim pertaining to the sufficiency of his guilty plea. Additionally, he contends that the Justice Court should have granted the branch of his motion seeking to preclude the People from using at trial certain statements allegedly made by him, on the ground that the People had failed to provide a timely CPL 710.30 notice.
The People concede that defendant's appeal waiver was deficient. In any event, the issue raised by defendant on appeal relating to the sufficiency of his guilty plea pertains to a right of constitutional dimension going to "the very heart of the process," and is, therefore, a claim which survives even a valid waiver of the right to appeal ( People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Bond , 146 A.D.3d 1155, 44 N.Y.S.3d 776 [2017] ; People v. May , 138 A.D.3d 1146, 30 N.Y.S.3d 327 [2016] ; People v. Ayala , 55 Misc. 3d 150[A], 2017 N.Y. Slip Op. 50755[U], 2017 WL 2505987 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017] ).
Generally, a defendant must move to withdraw his guilty plea or to vacate the judgment of conviction to preserve a claim that the plea is invalid (see People v. Conceicao , 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). However, a narrow exception exists "where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record" ( Conceicao , 26 N.Y.3d at 381, 44 N.E.3d 199 ; People v. Louree , 8 N.Y.3d 541, 546, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007] ). Here, this issue is reviewable on direct appeal, despite the fact that defendant did not move to withdraw his plea or to vacate the judgment of conviction, as he faced a practical inability to move to withdraw the plea because he was sentenced on the same date as the plea proceeding (see People v. Sougou , 26 N.Y.3d 1052, 1054, 23 N.Y.S.3d 121, 44 N.E.3d 196 [2015] ; Conceicao , 26 N.Y.3d at 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Reinhardt , 58 Misc. 3d 151[A], 2018 N.Y. Slip Op. 50111[U], 2018 WL 632074 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2018] ).
A guilty plea is not invalid solely because the trial court failed to recite a defendant's constitutional rights pursuant to Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ; see People v. Pellegrino , 26 N.Y.3d 1063, 23 N.Y.S.3d 145, 44 N.E.3d 220 [2015]. Here, the record establishes that defendant was aware that he had the right to a trial in which the People would have the burden of proving each and every element of the charged offense beyond a reasonable doubt, the right to confront the People's witnesses, and the right to remain silent, and that he had the benefit of his counsel's efforts and guidance, spoke with counsel, and chose to forgo trial in favor of entering a guilty plea. Therefore, the totality of the circumstances establishes a knowing, intelligent, and voluntary plea (see People v. Sosa , 28 N.Y.3d 965, 966, 38 N.Y.S.3d 834, 60 N.E.3d 1200 [2016] ; Conceicao , 26 N.Y.3d at 384, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Rosa , 135 A.D.3d 434, 22 N.Y.S.3d 423 [2016] ; Reinhardt , 58 Misc. 3d 151[A], 2018 N.Y. Slip Op. 50111[U] ; People v. Atkins , 51 Misc. 3d 144[A], 2016 N.Y. Slip Op. 50709[U], 2016 WL 2584884 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2016] ).
As to the final contention raised by defendant on appeal, we note that the failure of the People to provide a timely CPL 710.30 notice is a claim foreclosed by a guilty plea (see People v. Hansen , 95 N.Y.2d 227, 231 n 3, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Taylor , 65 N.Y.2d 1, 5-7, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985] ), and, thus, this claim is not subject to review.
Accordingly, the judgment of conviction is affirmed.
ADAMS, P.J., RUDERMAN and EMERSON, JJ., concur.