People v. Merritt

210 A.D.3d 1209

178 N.Y.S.3d 254

The PEOPLE of the State of New York, Respondent,

v.Stephan MERRITT, Appellant.

113072

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

Calendar Date: October 19, 2022

Decided and Entered: November 10, 2022

Lisa A. Burgess, Indian Lake, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Vivian Y. Joo of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Ceresia, J. Appeal from a judgment of the County Court of Clinton County (William A. Favreau, J.), rendered January 8, 2021, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant was indicted and charged with one count each of promoting prison contraband in the first degree and criminal possession of a weapon in the third degree. The charges stemmed from an incident wherein defendant was found to be in possession of a shank-type weapon while incarcerated at Clinton Correctional Facility. In full satisfaction of that indictment, defendant agreed to plead guilty to one count of attempted promoting prison contraband in the first degree with the understanding that he would be sentenced as a second felony offender to a prison term of 1½ to 3 years – said sentence to be served consecutively to the prison term he then was serving. The plea agreement also required defendant to waive his right to appeal and contemplated that a fine – in an amount to be determined by County Court – would be imposed. Defendant, appearing virtually, pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing. Prior thereto, defendant executed a written waiver of the right to appeal. County Court subsequently sentenced defendant to the agreed-upon prison term and, as relevant here, imposed a fine in the amount of $2,500. This appeal ensued.

We affirm. Initially, for the reasons set forth below, we need not address defendant's claim that his waiver of the right to appeal is unenforceable. As for defendant's challenge to the voluntariness of his plea, which survives even a valid appeal waiver (see People v. Guerrero, 194 A.D.3d 1258, 1260, 147 N.Y.S.3d 264 [3d Dept. 2021], lv denied 37 N.Y.3d 992, 152 N.Y.S.3d 412, 174 N.E.3d 352 [2021] ), this issue is unpreserved for our review in the absence of a postallocution motion (see People v. Greene, 207 A.D.3d 804, 805, 170 N.Y.S.3d 729 [3d Dept. 2022], lv denied 38 N.Y.3d 1150, 174 N.Y.S.3d 45, 194 N.E.3d 752 [2022] ; People v. Rubert, 206 A.D.3d 1378, 1380, 170 N.Y.S.3d 346 [3d Dept. 2022] ). Contrary to defendant's assertion, the narrow exception to the preservation requirement was not triggered here as defendant did not make any statements during the plea colloquy or at sentencing that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Sims, 207 A.D.3d 882, 884, 172 N.Y.S.3d 195 [3d Dept. 2022] ; People v. See, 206 A.D.3d 1153, 1155, 168 N.Y.S.3d 743 [3d Dept. 2022] ). To the extent that defendant stated during the course of his presentence investigation interview that "another [incarcerated individual] asked him to hold a spoon for him and [defendant] put it in his waistband not realizing that it was a weapon," such statement was both inconsistent with defendant's sworn plea allocution (see People v. Pittman, 166 A.D.3d 1243, 1245, 86 N.Y.S.3d 347 [3d Dept. 2018], lv denied 32 N.Y.3d 1176, 97 N.Y.S.3d 601, 121 N.E.3d 228 [2019] ) and insufficient to impose a duty of further inquiry upon County Court (see People v. Ospina, 175 A.D.3d 513, 514, 107 N.Y.S.3d 59 [2d Dept. 2...