People v. Hernandez

188 A.D.3d 1357

135 N.Y.S.3d 516

The PEOPLE of the State of New York, Respondent,

v.Ivan J. HERNANDEZ, Appellant.

110903

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

Decided and Entered: November 12, 2020

Calendar Date: October 20, 2020

Marlene O. Tuczinski, Chatham, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Devine and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered March 27, 2018, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and strangulation in the second degree.

In satisfaction of an eight-count indictment, defendant pleaded guilty to burglary in the second degree and strangulation in the second degree. The plea agreement included a waiver of the right to appeal. County Court thereafter sentenced defendant, as a second violent felony offender, to a prison term of eight years, followed by five years of postrelease supervision, for his burglary conviction and to a lesser concurrent prison term on the remaining conviction. Defendant appeals.

We affirm. Initially, the record reflects that defendant's appeal waiver was knowing, intelligent and voluntary. County Court distinguished the right to appeal as separate and distinct from the rights forfeited by defendant's guilty plea, and defendant acknowledged his understanding of the waiver and its ramifications. Defendant also signed a written waiver and assured the court that he had discussed the waiver with counsel and understood its contents. Although the written waiver contained some overbroad language, it also informed defendant that certain issues survive the waiver, including the right to a speedy trial, competency matters, the legality of the sentence, the voluntariness of his guilty plea and "any other issue deemed non-waivable by a higher court," and indicated that such non-waivable issues could "be raised on appeal or other post-judgment collateral attack." Accordingly, under the totality of the circumstances, we are satisfied that "the counseled defendant understood the distinction that some appellate review survived" ( People v. Thomas, 34 N.Y.3d 545, 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; see People v. Martin, 179 A.D.3d 1385, 1386, 114 N.Y.S.3d 889 [2020] ). As such, we find that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Martin, 179 A.D.3d at 1386, 114 N.Y.S.3d 889 ; compare People v. Martz, 181 A.D.3d 979, 980, 119 N.Y.S.3d 310 [2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 819, 151 N.E.3d 500 [2020] ).

Defendant challenges the voluntariness and factual sufficiency of his guilty plea to the charge of strangulation in the second degree; however, these challenges are not preserved for our review, as the record does not disclose that defendant made an appropriate postallocution motion (see People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 [2020] ; People v. Favreau, 174 A.D.3d 1226, 1227, 105 N.Y.S.3d 721 [2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 631, 137 N.E.3d 1 [2019] ). Contrary to defendant's contention, "this is not the ‘rare case’ that comes ‘within the narrow exception to the preservation requirement’ inasmuch as defendant's factual recitation did not actually negate an essential element of the crime to which he pleaded" ( People v. Devault, 124 A.D.3d 1140, 1141, 1 N.Y.S.3d 579 [2015], lv denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015], quoting People v. Worden, 22 N.Y.3d 982, 985, 980 N.Y.S.2d 317, 3 N.E.3d 654 [2013] ; see People v. Griffith, 136 A.D.3d 1114, 1114–1115, 25 N.Y.S.3d 400 [2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ; compare People v. McMillan, 129 A.D.3d 1113, 1113–1114, 12 N.Y.S.3d 310 [2015] ).

Defendant's argument that County Court failed to comply with the procedural requirements of CPL 400.15 in determining him to be a second violent felony offender has not been preserved for our review given his failure to object at sentencing (see People v. Howell, 178 A.D.3d 1148, 1149, 115 N.Y.S.3d 498 [2019], lv denied 34 N.Y.3d 1129, 118 N.Y.S.3d 544, 141 N.E.3d 500 [2020] ; People v. Quinones, 162 A.D.3d 1402, 1403, 79 N.Y.S.3d 760 [2018] ; People v. House, 119 A.D.3d 1289, 1290, 989 N.Y.S.2d 919 [2014] ). Defendant further contends that he was improperly sentenced as a second violent felony offender because the People's predicate felony statement did not comply with CPL 400.15(2). His failure to raise any objection to the statement, however, renders this contention unpreserved (see People v. Meckwood, 86 A.D.3d 865, 867, 927 N.Y.S.2d 729 [2011], affd 20 N.Y.3d 69, 956 N.Y.S.2d 453, 980 N.E.2d 501 [2012] ; People v. McDowell, 56 A.D.3d 955, 956, 868 N.Y.S.2d 779 [2008] ; People v. Ruffin, 42 A.D.3d 582, 582, 838 N.Y.S.2d 269 [2007], lv denied 9 N.Y.3d 881, 842 N.Y.S.2d 793, 874 N.E.2d 760 [2007] ). To the extent that defendant claims that his sentence is illegal and that he is not required to preserve these issues, the record reflects that defendant was provided the predicate felony statement and County Court discussed its contents with him at the plea proceeding. The prior felony occurred more than 10 years prior to the commission of his current crime and the statement contained the dates when defendant was incarcerated between the commission of the two crimes in order to toll the running of the statutory 10–year period (see CPL 400.15[2] ; Penal Law § 70.04[1][b][v] ). Although the statement failed to identify the place or places where defendant was incarcerated during the relevant time periods (see CPL 400.15[2] ), defendant admitted to the prior felony and does not dispute that he was incarcerated for the requisite time as reflected in the statement. Under these circumstances, we find substantial compliance with CPL 400.15 (see People v. Wiltshire, 96 A.D.3d 1227, 1231, 947 N.Y.S.2d 199 [2012], lv denied 22 N.Y.3d 1204, 986 N.Y.S.2d 424, 9 N.E.3d 919 [2014] ; People v. Leszczynski, 96 A.D.3d 1162, 1164, 948 N.Y.S.2d 125 [2012], lv denied 19 N.Y.3d...