People v. Sanford

Charles J. Greenberg, Amherst, for Defendant–Appellant.

Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.

PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

Opinion

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20 ). We agree with defendant that the waiver of the right to appeal was not valid inasmuch as the “inquiry made by [County] Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to

ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. Beaver, 128 A.D.3d 1493, 1494, 7 N.Y.S.3d 816 [internal quotation marks omitted]; see People v. McCullars, 117 A.D.3d 1480, 1480–1481, 984 N.Y.S.2d 626, lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 253, 17 N.E.3d 508 ). Although defendant signed a written waiver of the right to appeal, “[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it” ( People v. Bradshaw, 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see People v. Donaldson, 130 A.D.3d 1486, 1486–1487, 13 N.Y.S.3d 741 ; Beaver, 128 A.D.3d at 1494, 7 N.Y.S.3d 816 ). In any event, a valid waiver of the right to appeal would not preclude defendant's contention that his plea was not knowing, intelligent and voluntary ( see People v. Wisniewski, 128 A.D.3d 1481, 1481, 8 N.Y.S.3d 539, lv. denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 ), but defendant failed to preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction ( see People v. Laney, 117 A.D.3d 1481, 1482, 984 N.Y.S.2d 727 ). Furthermore, this case does not fall within the rare exception to the preservation requirement inasmuch as nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Brinson, 130 A.D.3d 1493, 1493, 11 N.Y.S.3d 788, lv. denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 ).

Finally, we conclude that defendant's contentions that his attorney at the time of his plea had a conflict of interest and that the attorney was ineffective because of that conflict concern matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see People v. Jackson, 108 A.D.3d 1079, 1079, 968 N.Y.S.2d 789, lv. denied 22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170 ; People v. Pagan, 12 A.D.3d 1143, 1144, 784 N.Y.S.2d 815, lv. denied

4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142 ).

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