People v. Garcia

203 A.D.3d 1585

161 N.Y.S.3d 919 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Angemar GARCIA, Defendant-Appellant.

223

KA 21-00192

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

Entered: March 11, 2022

ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT-APPELLANT.

PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree ( Penal Law § 130.50 [3] ). We agree with defendant that his waiver of the right to appeal is invalid because Supreme Court " ‘conflated the right to appeal with those rights automatically forfeited by the guilty plea’ " ( People v. Chambers , 176 A.D.3d 1600, 1600, 111 N.Y.S.3d 149 [4th Dept. 2019], lv denied 34 N.Y.3d 1076, 116 N.Y.S.3d 180, 139 N.E.3d 838 [2019] ; see People v. Rodriguez , 199 A.D.3d 1458, 1458, 154 N.Y.S.3d 609 [4th Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 712, 181 N.E.3d 1140 [2022] ; People v. Wright , 193 A.D.3d 1348, 1349, 143 N.Y.S.3d 259 [4th Dept. 2021], lv denied 37 N.Y.3d 969, 148 N.Y.S.3d 759, 171 N.E.3d 235 [2021] ) and, therefore, the record does not establish that "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Consequently, the waiver of the right to appeal does not preclude our review of defendant's challenge to the severity of the sentence. Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Defendant did not move to withdraw the plea or to vacate the judgment of conviction, and thus he failed to preserve for our review his challenge to the voluntariness of his plea (see People v. Mobayed , 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ). We reject defendant's contention that this case falls within the rare exception to the preservation doctrine inasmuch as nothing in the plea colloquy "casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; see People v. Davis , 193 A.D.3d 1352, 1352-1353, 143 N.Y.S.3d 260 [4th Dept. 2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 752, 171 N.E.3d 228 [2021] ). Furthermore, even assuming, arguendo, that the court's duty to make further inquiry was triggered by defendant's statements during sentencing (see People v. Pastor , 28 N.Y.3d 1089, 1090-1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; see generally People v. Delorbe , 35 N.Y.3d 112, 121, 125 N.Y.S.3d 327, 149 N.E.3d 20 [2020] ) and thus that the rare exception applies here due to the court's failure to inquire into those statements (see Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), we nonetheless reject defendant's challenge to the voluntariness of his plea inasmuch as defendant's contention that he was coerced into accepting the plea is "belied by his statements during the plea proceeding[ ]" and his "conclusory and unsubstantiated claim[s] of innocence [were] belied by his admissions during the plea colloquy" ( People v. Garner , 86 A.D.3d 955, 955, 926 N.Y.S.2d 796 [4th Dept. 2011] ; see People v. Shanley , 189 A.D.3d 2108, 2109, 134 N.Y.S.3d 856 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 117, 167 N.E.3d 1252 [2021] ).

Defendant further contends that the court erred in calculating the duration of the order of protection issued against him without taking into account the jail time credit to which he is entitled (see People v. Bradford , 61 A.D.3d 1419, 1421, 877 N.Y.S.2d 586 [4th Dept. 2009], affd 15 N.Y.3d 329, 910 N.Y.S.2d 771, 937 N.E.2d 528 [2010] ). Defendant raises that contention for the first time on appeal and has thus failed to preserve it for our review (see People v. Nieves , 2 N.Y.3d 310, 315-316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; People v. Davis , 153 A.D.3d 1617, 1618, 60 N.Y.S.3d 889 [4th Dept. 2017], lv denied 30 N.Y.3d 1059, 71 N.Y.S.3d 9, 94 N.E.3d 491 [2017] ). In any event, we reject defendant's contention "inasmuch as a period of postrelease supervision may be included in calculating the maximum legal expiration date of an order of protection" ( People v. Gonyeau , 144 A.D.3d 1574, 1574, 40 N.Y.S.3d 318 [4th Dept. 2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ; see CPL 530.12 [5] [A] [ii] ; People v. Cooke , 119 A.D.3d 1399, 1401, 989 N.Y.S.2d 753 [4th Dept. 2014], affd 24 N.Y.3d 1196, 3 N.Y.S.3d 755, 27...