People v. Rodriguez

199 A.D.3d 1458

154 N.Y.S.3d 609 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Luis RODRIGUEZ, Defendant-Appellant.

884

KA 20-00315

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

Entered: November 19, 2021

KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon a guilty plea of aggravated criminal contempt ( Penal Law § 215.52 [1] ). As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid. During the plea colloquy, County Court " ‘conflated the right to appeal with those rights automatically forfeited by the guilty plea’ " ( People v. Chambers , 176 A.D.3d 1600, 1600, 111 N.Y.S.3d 149 [4th Dept. 2019], lv denied 34 N.Y.3d 1076, 116 N.Y.S.3d 180, 139 N.E.3d 838 [2019] ; see People v. Mothersell , 167 A.D.3d 1580, 1581, 90 N.Y.S.3d 466 [4th Dept. 2018] ) and, therefore, the record does not establish that "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Moreover, the court's explanation that the waiver would foreclose any review by a higher court "utterly ‘mischaracterized the nature of the right [to appeal that] defendant was being asked to cede’ " ( People v. Thomas , 34 N.Y.3d 545, 565, 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] ; see People v. Youngs , 183 A.D.3d 1228, 1229, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020] ).

By failing to move to withdraw the plea or vacate the judgment of conviction, defendant failed to preserve for our review his contention that his plea was involuntary because he did not demonstrate, in a narrative fashion, his understanding of the criminal acts relevant to the charge for which he pleaded guilty (see People v. Williams , 118 A.D.3d 1429, 1430, 988 N.Y.S.2d 771 [4th Dept. 2014] ). This case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988).

Defendant failed to preserve for our review his contention that the presentence report was incomplete and inadequate (see People v. Morrow , 167 A.D.3d 1516, 1517-1518, 90 N.Y.S.3d 436 [4th Dept. 2018], lv denied 33 N.Y.3d 951, 100 N.Y.S.3d 154, 123 N.E.3d 813 [2019] ; People v. Bradford , 126 A.D.3d 1374, 1374, 4 N.Y.S.3d 800 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). We reject defendant's further contention that he received ineffective assistance of counsel based on defense counsel's failure to object to the presentence report (see People v. Jones , 148 A.D.3d 1807, 1808, 49 N.Y.S.3d 337 [4th Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 171, 86 N.E.3d 258 [2017] ; see generally People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).

Defendant also failed to preserve for our review his contention that the People failed to comply with the procedural requirements of CPL 400.21 when he was sentenced as a second felony offender (see People v. Guillory , 98 A.D.3d 835, 835, 950 N.Y.S.2d 285 [4th Dept. 2012], lv denied 20 N.Y.3d 932, 957 N.Y.S.2d 692, 981 N.E.2d 289 [2012] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). Finally, we reject defendant's contention that the court abused its discretion in issuing a no-contact order of protection in favor of the victim, rather than a no-offensive-contact order (see People v. Miller , 183 A.D.3d 1268, 1269, 121 N.Y.S.3d 718 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 825, 151 N.E.3d 506 [2020] ; People v. Monacelli , 299 A.D.2d 916, 916, 750 N.Y.S.2d 690 [4th Dept. 2002], lv denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ; cf. People v. Jenkins , 184 A.D.3d 1150, 1151, 123 N.Y.S.3d 887 [4th Dept. 2020], lv denied 35 N.Y.3d 1067, 129...