Opinion
2020-303 W CR
03-03-2022
The PEOPLE of the State of New York, Respondent, v. Demetrice A. THOMPSON, Appellant.
Calhoun & Lawrence, LLP (Clinton W. Calhoun, III ), for appellant. Westchester County District Attorney (Jill Oziemblewski and William C. Milaccio of counsel), for respondent.
Calhoun & Lawrence, LLP (Clinton W. Calhoun, III ), for appellant.
Westchester County District Attorney (Jill Oziemblewski and William C. Milaccio of counsel), for respondent.
PRESENT: JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a felony complaint with grand larceny in the third degree ( Penal Law § 155.35 ), grand larceny in the fourth degree ( Penal Law § 155.30 ), possession of burglar's tools ( Penal Law § 140.35 ), and criminal possession of stolen property in the third degree ( Penal Law § 165.50 ). After several court conferences, the count of grand larceny in the fourth degree was reduced to petit larceny ( Penal Law § 155.25 ), to which charge defendant pleaded guilty, and the remaining counts were dismissed. The plea was conditioned on defendant executing an appeal waiver form and a misdemeanor conviction waiver of rights form, which, among other things, enumerated the constitutional trial rights that defendant was waiving by pleading guilty.
We need not pass on the validity of defendant's appeal waiver because the contention raised by defendant on appeal pertaining to the voluntariness of his guilty plea is a claim which survives even a valid waiver (see People v Bisono , 36 NY3d 1013, 1017 [2020] ; People v Thomas , 34 NY3d 545, 558 [2019] ; People v Flores , 63 Misc 3d 163[A], 2019 NY Slip Op 50931[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Ayala , 55 Misc 3d 150[A], 2017 NY Slip Op 50755[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]).
"Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea ... or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10" ( People v Peque , 22 NY3d 168, 182 [2013] ; see People v Delorbe , 35 NY3d 112, 119 [2020] ; People v Conceicao , 26 NY3d 375, 381 [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 NY3d at 381 ; see Delorbe , 35 NY3d at 119 ; People v Louree , 8 NY3d 541, 546 [2007] ). Here, since defendant was sentenced in the same proceeding in which he entered his plea of guilty, he "faced a practical inability to move to withdraw [his] plea" ( Conceicao , 26 NY3d at 382 ; see Flores , 2019 NY Slip Op 50931[U] ). Therefore, as the People concede, defendant's claim is preserved for appellate review (see People v Sougou , 26 NY3d 1052, 1054 [2015] ; Flores , 2019 NY Slip Op 50931[U] ).
Nonetheless, we find that defendant's claim regarding his plea is without merit. A guilty plea is not invalid solely because the trial court failed to inform a defendant of all of the trial-related constitutional rights that were being forfeited as a result of the plea (see People v Pellegrino , 26 NY3d 1063 [2015] ; Sougou , 26 NY3d at 1054 ; Conceicao , 26 NY3d at 379, 383 ). Here, after the prosecutor orally confirmed with defendant on the record that he understood that, by pleading guilty, he was giving up certain constitutional rights and that he spoke with his attorney before agreeing to take the plea, counsel referred to two documents that he was holding in his hand and defendant confirmed that he signed them. While the prosecutor did not identify the waiver forms by name, it can reasonably be inferred from the record that the misdemeanor conviction waiver of rights form and the appeal waiver form were the two documents referenced by the prosecutor. Thus, the record establishes that defendant was made aware through the misdemeanor conviction waiver of rights form, which form he executed and confirmed that he discussed with his attorney, that, by pleading guilty, he was giving up certain constitutional rights (see People v Cedeno , 68 Misc 3d 129[A], 2020 NY Slip Op 50948[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Ayala , 2017 NY Slip Op 50755[U] ; People v Ackridge , 46 Misc 3d 143[A], 2015 NY Slip Op 50184[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). As a result, viewed as a whole, the record affirmatively demonstrates that defendant's plea was entered into knowingly, voluntarily and intelligently, as he had a full understanding and appreciation of the guilty plea and its consequences (see Pellegrino , 26 NY3d 1064 ; Conceicao , 26 NY3d at 379, 383 ; Cedeno , 2020 NY Slip Op 50948[U] ; Flores , 2019 NY Slip Op 50931[U] ; Ayala , 2017 NY Slip Op 50755[U] ).
Accordingly, the judgment of conviction is affirmed.
GARGUILO, P.J., DRISCOLL and VOUTSINAS, JJ., concur.