People v. Burke

2021 NY Slip Op 06395

The People of the State of New York, Respondent, v. Michael Burke, Appellant.

No. 111719

Supreme Court of New York, Third Department

November 18, 2021

Calendar Date: October 13, 2021

John Ferrara, Monticello, for appellant.

Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Colangelo JJ.

Pritzker, J.

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered February 28, 2019, convicting defendant upon his plea of guilty of the crime of attempted criminal sexual act in the first degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of criminal sexual act in the first degree. The charge stemmed from an incident that occurred in August 2018, at which time defendant - then 17 years old - engaged in oral sexual conduct with a five-year-old child. Defendant subsequently was offered the opportunity to plead guilty to the reduced charge of attempted criminal sexual act in the first degree. As to sentencing, County Court indicated that it would consider defendant's request for youthful offender treatment, and defendant was apprised that, should such request be denied, he would be sentenced to a prison term of 3½ years followed by 10 years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and County Court denied defendant's request for youthful offender treatment and sentenced defendant to the contemplated term of imprisonment. This appeal ensued.

We affirm. With respect to defendant's waiver of the right to appeal, the record reflects that defendant was informed at the outset that a waiver of the right to appeal was part of the plea agreement (see People v Thaxton, 191 A.D.3d 1166, 1167 [2021], lv denied 37 N.Y.3d 960 [2021]; People v Feltz, 190 A.D.3d 1026, 1026-1027 [2021]) and County Court both explained the separate and distinct nature of the right to appeal and distinguished it from the trial-related rights that defendant would be forfeiting by pleading guilty (see People v Hemingway, 192 A.D.3d 1266, 1266 [2021], lvs denied 37 N.Y.3d 956, 960 [2021]; People v Carter, 191 A.D.3d 1168, 1169 [2021]). In response, defendant indicated that he understood the nature of the right being relinquished, had no questions relative thereto and had been afforded sufficient time to confer with counsel (see People v Feltz, 190 A.D.3d at 1026-1027; People v Brunson, 185 A.D.3d 1300 1300 [2020], lv denied 36 N.Y.3d 928 [2020]). Although the written appeal waivers executed by defendant - one following his guilty plea and the other at the time of sentencing - are invalid due to County Court's failure to ascertain whether defendant read the written waivers, discussed them with counsel or understood their contents (see People v Brunson, 185 A.D.3d at 1300; People v Burnell, 183 A.D.3d 931, 932 [2020], lv denied 35 N.Y.3d 1043 [2020]), the lack of a valid written waiver is not fatal "where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his or her right to appeal" (People v Bonner, 182 A.D.3d 867, 867 [2020]; see People v Brunson, 185 A.D.3d at 1300). Defendant's ineffective assistance of counsel claim - to the extent that it impacts upon the voluntariness of his plea - survives the valid appeal waiver but is unpreserved for our review absent an appropriate postallocution motion (see People v Guerrero, 194 A.D.3d 1258, 1261 [2021], lv denied 37 N.Y.3d 992 [2021]; People v Stanley, 189 A.D.3d 1818,...