People v. Gutierrez

194 A.D.3d 839

143 N.Y.S.3d 897 (Mem)

The PEOPLE, etc., respondent,

v.Arturo GUTIERREZ, appellant.

2019–05741

S.C.I. No. 747/18

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

Submitted—April 21, 2021

May 12, 2021

Arza Feldman, Manhasset, N.Y. (Steven A. Feldman of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Cristin N. Connell of counsel; Matthew C. Frankel on the brief), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert G. Bogle, J.), rendered September 11, 2018, as amended October 10, 2018, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

As a threshold matter, since the only substantive argument raised on the defendant's appeal concerns the validity of his plea, we need not reach the People's contention regarding the validity of the defendant's appeal waiver (see People v. Adames, 173 A.D.3d 1058, 100 N.Y.S.3d 567 ; People v. Henriquez, 168 A.D.3d 876, 876, 89 N.Y.S.3d 912 ; People v. Bernard, 155 A.D.3d 1059, 65 N.Y.S.3d 457 ).

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made is unpreserved for appellate review, since he did not move to withdraw his plea on this ground or otherwise raise this issue prior to the imposition of sentence (see CPL 220.60[3] ; 470.05[2]; People v. Hernandez, 110 A.D.3d 919, 919, 972 N.Y.S.2d 697 ; People v. Andrea, 98 A.D.3d 627, 627, 949 N.Y.S.2d 654 ). The defendant's contention that preservation is not required because this alleged error constitutes a mode of proceedings error is without merit (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ).

In any event, the defendant's contention that his plea was not knowing, intelligent, and voluntary is without merit. Contrary to the defendant's contention, the record demonstrates that his decision to plead guilty was knowing, intelligent, and voluntary (see generally People v. Hill, 9 N.Y.3d 189, 191, 849 N.Y.S.2d 13, 879 N.E.2d 152 ; People v. Hidalgo, 91 N.Y.2d 733, 736, 675 N.Y.S.2d 327, 698 N.E.2d 46 ; People v. Fiumefreddo, 82 N.Y.2d 536, 543–544, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Fraser, 192 A.D.3d 702, 139 N.Y.S.3d 560 ; People v. Hendrix, 172 A.D.3d 1224, 1224, 98 N.Y.S.3d 889 ; People v. Moye, 170 A.D.3d 1198, 1199, 95 N.Y.S.3d 535 ; People v. Rifino, 143 A.D.3d...