People v. Gordon

191 A.D.3d 1367

140 N.Y.S.3d 662

The PEOPLE of the State of New York, Respondent,

v.Christina Sanford GORDON, Defendant-Appellant.

1058

KA 18-01797

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

Entered: February 5, 2021

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (NIKKI KOWALSKI OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting her upon her plea of guilty of, inter alia, grand larceny in the second degree ( Penal Law § 155.40 [1] ), defendant contends that she did not validly waive her right to appeal. We agree. Here, in describing the nature of defendant's right to appeal and the breadth of the waiver of that right, County Court incorrectly stated, inter alia, that defendant "can't request a higher court, an appellate court, to reverse or dismiss or overturn your plea of guilty or sentence in any way," without mention of any exception, which mischaracterized the waiver as an absolute bar to the taking of an appeal (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] ; People v. Jeffords , 185 A.D.3d 1417, 1418, 128 N.Y.S.3d 112 [4th Dept. 2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 303, 155 N.E.3d 796 [2020] ). Although defendant also signed a written waiver form, " ‘[t]he court did not inquire of defendant whether [she] understood the written waiver or whether [she] had even read the waiver before signing it’ " ( People v. Sanford , 138 A.D.3d 1435, 1436, 30 N.Y.S.3d 440 [4th Dept. 2016] ; 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] ).

Defendant failed to preserve her further contention that any amount of restitution ordered by the court was not supported by the record inasmuch as she failed to object on that ground or request a restitution hearing (see People v. Rodriguez , 173 A.D.3d 1840, 1841, 104 N.Y.S.3d 469 [4th Dept. 2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 627, 134 N.E.3d 626 [2019] ; People v. Butler , 170 A.D.3d 1496, 1497, 94 N.Y.S.3d 512 [4th Dept. 2019] ; People v. Meyer , 156 A.D.3d 1421, 1421-1422, 65 N.Y.S.3d 883 [4th Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ). In any event, the court here did not order restitution as part of its sentence. To the extent defendant seeks to challenge the civil confessions of judgment that she executed prior to sentencing, those confessions of judgment — the amount, signing, and filing of which were not part of the court's sentence — are not properly before us on this appeal from her criminal judgment of conviction.

Defendant further contends that the court erred in sentencing her as a second felony offender based on her prior federal conviction under 18 USC §§ 2 and 641 because those statutes apply to conduct that does not constitute a felony in New York. Defendant's contention is unpreserved for our review inasmuch as defendant never " ‘raise[d] the issue ... whether the statute[s] under which [she] was convicted ... [are] the equivalent of a New York ... felony’ " at the plea colloquy or sentencing ( People v. Wingfield , 181 A.D.3d 1253, 1254, 120 N.Y.S.3d 671 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 857, 151 N.E.3d 538 [2020], reconsideration denied 35 N.Y.3d 1098, 131 N.Y.S.3d 294, 155 N.E.3d 787 [2020] ). This case does not fit within the " ‘narrow exception to the preservation rule’ " ( People v. Nieves , 2 N.Y.3d 310, 315, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ). Moreover, because "[a] CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as ‘unauthorized, illegally imposed or otherwise invalid as a matter of law’ ( CPL 440.20 [1] ), and a determination of second felony offender status is an aspect of the sentence" ( People v. Jurgins , 26 N.Y.3d 607, 612, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015] ; see Wingfield , 181 A.D.3d at 1254, 120 N.Y.S.3d 671 ), we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15...