People v. Carbone

199 A.D.3d 1489

154 N.Y.S.3d 597 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Bianca L. CARBONE, Defendant-Appellant.

998

KA 18-02376

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 19, 2021

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, 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 convicting her, upon her plea of guilty, of attempted promoting prison contraband in the first degree ( Penal Law §§ 110.00, 205.25 [1] ). Defendant contends that her plea was involuntary because the factual allocution cast significant doubt on her guilt with respect to the dangerous contraband element of the crime, and County Court erred in accepting the plea without making further inquiry to ensure that the plea was voluntary. Although that contention would survive even a valid waiver of the right to appeal (see People v. Thomas , 34 N.Y.3d 545, 558, 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] ; People v. Seaberg , 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), by failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve her contention for our review (see People v. Lopez , 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Paternostro , 188 A.D.3d 1675, 1676, 132 N.Y.S.3d 360 [4th Dept. 2020], lv denied 36 N.Y.3d 1053, 140 N.Y.S.3d 885, 164 N.E.3d 972 [2021] ). We conclude that this case does not fall within the rare exception to the preservation requirement (see Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Contrary to defendant's contention, nothing in the plea colloquy "clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea," and the court therefore had no duty to conduct further inquiry with respect to the plea ( id. ).

We do not consider the additional challenge to the voluntariness of the plea raised by defendant in her brief inasmuch as her appellate counsel withdrew that contention (see People v. Pedro , 134 A.D.3d 1396, 1397, 21 N.Y.S.3d 653 [4th Dept. 2015] ).

Even assuming, arguendo, that defendant's purported waiver of the right to appeal is invalid and thus does not bar her challenge to the factual sufficiency of the plea, defendant nonetheless failed to preserve that challenge for our review, and this case does not fall within the rare exception to the preservation requirement (see People v. Judd , 111 A.D.3d 1421, 1422, 975 N.Y.S.2d 312 [4th Dept. 2013], lv denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014] ; see generally Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, defendant's challenge lacks merit. "Where[,] [as here], a defendant enters a negotiated plea to a lesser crime than one with which [sh...