People v. Ringler

178 A.D.3d 959

112 N.Y.S.3d 526 (Mem)

The PEOPLE, etc., Respondent,

v.Jermaine D. RINGLER, Appellant.

2017–11104

Ind. No. 96/17

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

Submitted—October 22, 2019

December 18, 2019

Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid appeal waiver precludes appellate review of his challenge to the factual sufficiency of his plea allocution (see People v. Contreras, 170 A.D.3d 1034, 1035, 95 N.Y.S.3d 325 ; People v. Griffin, 167 A.D.3d 934, 88 N.Y.S.3d 348 ; People v. Hutter, 154 A.D.3d 776, 63 N.Y.S.3d 391 ).

Although a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Contreras, 170 A.D.3d at 1035, 95 N.Y.S.3d 325 ), the defendant failed to preserve for appellate review his contention that his plea of guilty was not knowing, voluntary, and intelligent, since he did not move to withdraw his plea or otherwise raise this issue before the County Court (see CPL 470.05[2] ; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Moreover, contrary to the defendant's contention, the exception to the preservation requirement does not apply here, since the plea allocution did not cast significant doubt upon the defendant's guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Davis, 24 N.Y.3d 1012, 1013, 997 N.Y.S.2d 115, 21 N.E.3d 568 ; People v. Ramos, 164 A.D.3d 922, 922–923, 82 N.Y.S.3d 103 ). In any event, the defendant's contention is without merit, as the record as a whole affirmatively demonstrates that the defendant entered his guilty plea knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170 ).

Further, the defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence was excessive (see People v. Crews, 92 A.D.3d 795, 796, 938 N.Y.S.2d 475 ; People v. Hawthorne, 85 A.D.3d 819, 924 N.Y.S.2d 822 ).

SCHEINKMAN, P.J., RIVERA, ROMAN and CHRISTOPHER, JJ.,...