Opinion
2014-03-5
The PEOPLE, etc., respondent, v. Trevor TERRY, appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Barbara Kornblau of counsel; Matthew C. Frankel on the brief), for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Barbara Kornblau of counsel; Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (O'Brien, J.), rendered June 13, 2012, convicting him of possessing a sexual performance by a child, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record was insufficient to insure that the defendant grasped the distinction between the trial rights automatically forfeited upon a plea of guilty and the right to appeal, especially since there is no written waiver of the right to appeal in the record ( see People v. Moyett, 7 N.Y.3d 892, 826 N.Y.S.2d 597, 860 N.E.2d 59;People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Ayala, 112 A.D.3d 646, 975 N.Y.S.2d 889;cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222). Accordingly, the defendant's purported waiver of his right to appeal was invalid, and does not preclude review of his challenge to the factual sufficiency of his plea allocution.
However, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review since the defendant failed to move to withdraw his plea ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938;People v. Colston, 68 A.D.3d 1130, 892 N.Y.S.2d 145). Moreover, the exception to the preservation requirement, as enunciated in People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5, does not apply here because the defendant's allocution did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( see People v. Young, 88 A.D.3d 918, 931 N.Y.S.2d 235). In any event, the facts admitted by the defendant during his plea allocution were sufficient to support his plea of guilty ( see People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692;People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Fooks, 21 N.Y.2d 338, 350, 287 N.Y.S.2d 659, 234 N.E.2d 687,cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709). BALKIN, J.P., LOTT, ROMAN and MILLER, JJ., concur.