Opinion
629 KA 18-02442
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Nathaniel D. WILSON, also Known as Nathaniel D. Wilson, Jr., also Known as Nathaniel Wilson, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his Alford plea, of murder in the second degree ( Penal Law § 125.25 [1] ), defendant contends that his waiver of the right to appeal is invalid and does not encompass his challenges to his plea and to the severity of the sentence. With respect to defendant's contention that County Court erred in accepting his Alford plea because the record does not contain the requisite strong evidence of guilt or establish that the plea was the product of a voluntary and rational choice, we note that defendant's contention would survive even a valid waiver of the right to appeal to the extent that it implicates the voluntariness of the plea (see People v. Dash , 74 A.D.3d 1859, 1860, 902 N.Y.S.2d 490 [4th Dept. 2010], lv denied 15 N.Y.3d 892, 912 N.Y.S.2d 581, 938 N.E.2d 1016 [2010] ; People v. Dille , 21 A.D.3d 1298, 1298, 801 N.Y.S.2d 199 [4th Dept. 2005], lv denied 5 N.Y.3d 882, 808 N.Y.S.2d 585, 842 N.E.2d 483 [2005] ). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, however, and thus he failed to preserve that contention for our review (see People v. Dixon , 147 A.D.3d 1518, 1518-1519, 47 N.Y.S.3d 617 [4th Dept. 2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ; People v. Elliott , 107 A.D.3d 1466, 1466, 965 N.Y.S.2d 899 [4th Dept. 2013], lv denied 22 N.Y.3d 996, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ). Defendant further contends that preservation is not required because the plea was not knowingly, voluntarily and intelligently entered inasmuch as he made statements during sentencing that were inconsistent with guilt and the court failed to conduct the requisite "further inquiry" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We conclude that preservation is required because the "record indicated strong evidence of guilt and the court was not required to do more than it did to ensure that defendant voluntarily entered the plea" ( People v. Couser , 28 N.Y.3d 368, 379, 45 N.Y.S.3d 301, 68 N.E.3d 26 [2016] ). Furthermore, defendant raised the issue of intoxication for the first time in the presentence interview, and therefore the court had no duty to make further inquiry at the time of the plea based on such information (see generally People v. Espinal , 99 A.D.3d 435, 435, 951 N.Y.S.2d 525 [1st Dept. 2012], lv denied 20 N.Y.3d 986, 958 N.Y.S.2d 701, 982 N.E.2d 621 [2012] ). In any event, " ‘[i]n New York, [an Alford ] plea is allowed only when, as in Alford itself, it is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt’ " ( People v. Richardson , 72 A.D.3d 1578, 1579, 900 N.Y.S.2d 230 [4th Dept. 2010] ; see People v. Hill , 16 N.Y.3d 811, 814, 921 N.Y.S.2d 181, 946 N.E.2d 169 [2011] ). Here, we conclude that both of those conditions were met (see People v. Cruz , 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650 [4th Dept. 2011], lv denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ). Furthermore, we note that, "unlike an ordinary guilty plea, an Alford plea does not involve a recitation of guilt ... Inasmuch as defendant tendered his plea without admitting guilt, his claims of innocence are not incompatible with his Alford plea ... As such, they form no basis to attack the plea" ( People v. Alexander , 97 N.Y.2d 482, 487, 743 N.Y.S.2d 45, 769 N.E.2d 802 [2002] ).
Finally, even assuming, arguendo, that defendant's waiver of the right to appeal was invalid (see People v. Thomas , 34 N.Y.3d 545, 565-566, 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 also People v. Bisono , 36 N.Y.3d 1013, 1017-1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ), and thus does not preclude our review of his challenge to the severity of his sentence (see People v. Baker , 158 A.D.3d 1296, 1296, 68 N.Y.S.3d 349 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] ), we conclude that the sentence is not unduly harsh or severe.