Opinion
14322 Ind. No. 3405/15 Case No. 2018–4517
10-07-2021
The PEOPLE of the State of New York, Respondent, v. William WHITFIELD, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Emilia King–Musza of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Emilia King–Musza of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Moulton, Gonza´lez,Pitt, JJ.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered April 17, 2018, convicting defendant, upon his plea of guilty, of aggravated assault on a police officer or peace officer, and sentencing him, as a second violent felony offender, to a term of 11 years, unanimously affirmed.
We find that defendant's plea was knowingly, intelligently, and voluntarily entered, notwithstanding the court's misstatement, immediately before the plea was entered, that the maximum sentencing exposure was 30 years, when in fact it was 25 years. In general, misinformation about sentencing exposure may invalidate a guilty plea (see e. g. People v. Buchanan, 194 A.D.3d 655, 147 N.Y.S.3d 53 [1st Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 688, 172 N.E.3d 800 [2021] ; People v. Joseph, 191 A.D.3d 148, 137 N.Y.S.3d 31 [1st Dept. 2020], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 199, 169 N.E.3d 557 [2021] ; People v. Johnson, 160 A.D.3d 516, 518, 76 N.Y.S.3d 18 [1st Dept. 2018] ). Here, however, we find that the court's misstatement did not render the plea involuntary under the totality of the circumstances (see People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311 [1998] ). In particular, the record demonstrates that defendant was ready to accept the plea before the court misspoke about the maximum sentence. We have considered and rejected defendant's remaining arguments regarding the validity of his plea.
Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ), which forecloses review of his excessive sentence claim. Regardless of whether defendant made a valid waiver of his right to appeal, we perceive no basis for reducing the sentence.
Defendant was convicted before the enactment of CPL 420.35(2–a), which permits the waiver of surcharges and fees for persons who, like defendant, were less than 21 years old at the time of the crime. We decline to waive defendant's surcharge and fees in the interest of justice.