Opinion
51 KA 12-00216
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Vladimir V. VERIN, Defendant-appellant.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF COUNSEL), FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of criminal contempt in the first degree ( Penal Law § 215.51 [b] [vi] ) and sentencing him to a term of incarceration based on his admission that he violated three conditions of probation. We affirm.
Defendant contends that his admission to the violation of probation was not knowingly, voluntarily, or intelligently entered and that his waiver of the right to appeal is invalid. Because defendant's challenge to the voluntariness of his admission survives even a valid waiver of the right to appeal (see People v. Fairman , 38 A.D.3d 1346, 1347, 832 N.Y.S.2d 703 [4th Dept. 2007], lv denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007] ; see also People v. Hazel , 145 A.D.3d 797, 798, 42 N.Y.S.3d 358 [2d Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 379, 76 N.E.3d 1082 [2017] ), there is no reason for us to address defendant's contention regarding the validity of the waiver in this case.
Defendant's contention concerning the voluntariness of his admission is unpreserved for our review because defendant did not move on that ground either to withdraw his admission to the violation of probation or to vacate the judgment revoking his sentence of probation (see People v. Fox , 159 A.D.3d 1435, 1435, 72 N.Y.S.3d 299 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ; People v. Carncross , 48 A.D.3d 1187, 1187, 852 N.Y.S.2d 506 [4th Dept. 2008], lv dismissed 10 N.Y.3d 932, 862 N.Y.S.2d 339, 892 N.E.2d 405 [2008], lv denied 11 N.Y.3d 830, 868 N.Y.S.2d 605, 897 N.E.2d 1089 [2008] ; People v. Barra , 45 A.D.3d 1393, 1393-1394, 844 N.Y.S.2d 795 [4th Dept. 2007], lv denied 10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008] ). Moreover, the narrow exception to the preservation rule does not apply here (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).