Opinion
599 KA 17-02030
09-29-2023
The PEOPLE of the State of New York, Respondent, v. Gregory THOMPSON, Defendant-Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, as a class E felony (DWAI) ( Vehicle and Traffic Law §§ 1192 [4-a] ; 1193 [1] [c] [i] [A]) and aggravated unlicensed operation of a motor vehicle in the first degree ( § 511 [3] [a]). We affirm.
Initially, as defendant contends and as the People correctly concede, defendant's waiver of the right to appeal is invalid. Here, there is no basis in the record upon which to conclude that County Court "ensured ‘that ... defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Jones , 107 A.D.3d 1589, 1590, 966 N.Y.S.2d 724 [4th Dept. 2013], lv denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013], quoting People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Robbins , 213 A.D.3d 1278, 1279, 181 N.Y.S.3d 517 [4th Dept. 2023] ). In addition, the court mischaracterized the waiver as an "absolute bar" to the taking of an appeal ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ; see People v. Marshall , 214 A.D.3d 1360, 1361, 185 N.Y.S.3d 457 [4th Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 520, 213 N.E.3d 662 [2023] ).
Defendant also contends that his plea was not knowingly, voluntarily, and intelligently entered and that the allocution with respect to DWAI was factually insufficient. Although his voluntariness contention would survive even a valid waiver of the right to appeal (see People v. Nelson , 206 A.D.3d 1703, 1703-1704, 169 N.Y.S.3d 771 [4th Dept. 2022], lv denied 38 N.Y.3d 1152, 174 N.Y.S.3d 26, 194 N.E.3d 733 [2022] ; People v. Barzee , 204 A.D.3d 1422, 1422, 166 N.Y.S.3d 814 [4th Dept. 2022], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 865, 193 N.E.3d 530 [2022] ; see generally People v. Seaberg , 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), defendant failed to move to withdraw his plea or to vacate the judgment of conviction on the grounds now advanced on appeal, and therefore he failed to preserve his contentions for our review (see Barzee , 204 A.D.3d at 1423, 166 N.Y.S.3d 814 ). We further conclude that the narrow exception to the preservation rule set forth in People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988) does not apply in this case. We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).