Opinion
594 KA 16–00747
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Brian TCHIYUKA, also known as "Breezy", Defendant–Appellant.
HUG LAW, PLLC, ALBANY (MATTHEW C. HUG OF COUNSEL), FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
HUG LAW, PLLC, ALBANY (MATTHEW C. HUG OF COUNSEL), FOR DEFENDANT–APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the seventh degree ( Penal Law § 220.03 ), defendant contends that his Alford plea should be vacated because the plea was not voluntarily, intelligently or knowingly entered, and the People did not explain the strengths of their case on the record. To the extent that defendant's contention involves the voluntariness of his plea, the contention survives his valid waiver of the right to appeal (see 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. Dash, 74 A.D.3d 1859, 1859–1860, 902 N.Y.S.2d 490 [4th Dept. 2010], lv denied 15 N.Y.3d 892, 912 N.Y.S.2d 581, 938 N.E.2d 1016 [2010] ).
We nevertheless conclude that defendant's contention is not preserved for our review inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction (see Miller, 87 A.D.3d at 1303–1304, 930 N.Y.S.2d 143 ; People v. Hodge, 23 A.D.3d 1062, 1063, 804 N.Y.S.2d 189 [4th Dept. 2005] ), and the plea allocution does not engender significant doubt regarding defendant's guilt or otherwise call into question the voluntariness of the plea to bring this case within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Townley, 286 A.D.2d 885, 885, 730 N.Y.S.2d 908 [4th Dept. 2001] ). In any event, defendant's challenge to the plea lacks merit. "Despite his denials of guilt, defendant stated clearly on the record that he wanted to enter a guilty plea to avoid the possibility of a more severe sentence in the event that the case proceeded to trial. Defendant's statements demonstrate that his decision to enter a guilty plea despite his purported innocence was ‘the product of a voluntary and rational choice,’ and thus the Alford plea was proper" ( Miller, 87 A.D.3d at 1304, 930 N.Y.S.2d 143 ; see Hodge, 23 A.D.3d at 1063, 804 N.Y.S.2d 189 ). Moreover, contrary to defendant's contention, County Court ensured that there was strong evidence of his guilt of the offense to which he pleaded guilty (see People v. Hinkle, 56 A.D.3d 1210, 1210, 867 N.Y.S.2d 312 [4th Dept. 2008] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.