Opinion
02-09-2017
The PEOPLE of the State of New York, Respondent, v. Albert W. WOODS, Appellant.
Jacob Vredenburgh, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Jacob Vredenburgh, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and MULVEY, JJ.
MULVEY, J.Appeal from a judgment of the County Court of Schenectady County (Loyola, J.), rendered January 28, 2015, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
In satisfaction of a 13–count indictment, defendant pleaded guilty to assault in the second degree pursuant to a plea agreement that included a waiver of appeal. Consistent with that agreement, defendant was sentenced to a prison term of three years with five years of postrelease supervision. Defendant now appeals.
We affirm. Initially, we agree with defendant that his waiver of appeal was not knowing, voluntary or intelligent (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). County Court (Giardino, J.) did not elicit an oral waiver or discuss on the record the meaning or consequences of the waiver or its separate and distinct nature (see id. ). The written waiver of appeal signed during the plea allocution is likewise deficient, as the court failed to ascertain if defendant had read it, was aware of its contents or had discussed it with his attorney (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Larock, 139 A.D.3d 1241, 1242, 31 N.Y.S.3d 665 [2016], lv. denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ).
However, defendant's challenge to the voluntariness and factual sufficiency of his guilty plea is unpreserved for our review in the absence of an appropriate postallocution motion raising this claim, and the record does not reflect that he made any statements during the colloquy that triggered the narrow exception to the preservation requirement (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 219, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Larock, 139 A.D.3d at 1242, 31 N.Y.S.3d 665 ; People v. Velazquez, 125 A.D.3d 1063, 1064, 3 N.Y.S.3d 193 [2015], lv. denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ). Were the issue properly before us, we would find that the plea was knowing, voluntary and intelligent (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). Contrary to defendant's claim, his statement during the colloquy that he was taking anxiety medicine that "calms" him does not support the conclusion that he was taking medication that "clouded his judgment so as to render him incapable of voluntarily entering a guilty plea" (People v. Duffy, 126 A.D.3d 1142, 1142, 4 N.Y.S.3d 394 [2015] ; compare People v. Hennessey, 111 A.D.3d 1166, 1167, 975 N.Y.S.2d 502 [2013] ). Further, "an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime," and the record reflects that defendant understood the charge and "made an intelligent decision to enter a plea" (People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009] ; see People v. MacDonald, 113 A.D.3d 968, 968, 978 N.Y.S.2d 912 [2014] ).
Finally, defendant's contention that County Court (Loyola, J.) improperly sentenced him as a second felony offender and failed to comply with the provisions of CPL 400.21 is unpreserved for our review, as he did not object at sentencing despite the opportunity to do so (see People v. Lowell, 126 A.D.3d 1235, 3 N.Y.S.3d 651 [2015], lv. denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] ; People
v. Morse, 111 A.D.3d 1161, 1161–1162, 975 N.Y.S.2d 496 [2013], lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014] ). Given that defendant was advised during the plea allocution that he would be sentenced as a second felony offender and admitted the predicate conviction, corrective action in the interest of justice is not warranted (see People v. Lowell, 126 A.D.3d at 1235, 3 N.Y.S.3d 651 ).
ORDERED that the judgment is affirmed.
McCARTHY, J.P., GARRY, LYNCH and DEVINE, JJ., concur.