PEOPLE v. SANTOS (2024)

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his guilty plea of forcible touching (Penal Law § 130.52 [1]) and sexual abuse in the third degree (§ 130.55). In appeal No. 2, defendant appeals from a judgment convicting him upon his guilty plea of disseminating indecent material to a minor in the first degree (former § 235.22) and promoting a sexual performance by a child (§ 263.15). In each appeal, defendant contends that his global waiver of the right to appeal is unenforceable, and that his guilty plea should be vacated because it was not knowingly, intelligently, and voluntarily entered. In appeal No. 2, defendant further contends that his negotiated sentence is unduly harsh and severe. We affirm in both appeals.

Because defendant did not move to withdraw his pleas or to vacate either judgment of conviction, he failed to preserve for our review his challenges in both appeals to the voluntariness of his pleas (see People v. Shanley, 189 A.D.3d 2108, 2108, 134 N.Y.S.3d 856 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 117, 167 N.E.3d 1252 [2021]; People v. Peter, 141 A.D.3d 1115, 1116, 33 N.Y.S.3d 918 [4th Dept. 2016]). Contrary to defendant's contention in both appeals, his challenges do not fall within the narrow exception to the preservation requirement set forth in (People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]), inasmuch as he did not say anything during the plea colloquy that negated an element of a pleaded-to offense “or otherwise cast significant doubt on his guilt or call[ed] into question the voluntariness of the plea[s]” (People v. Barrett, 153 A.D.3d 1600, 1600, 62 N.Y.S.3d 653 [4th Dept. 2017], lv denied 30 N.Y.3d 1058, 71 N.Y.S.3d 8, 94 N.E.3d 490 [2017]; see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

We agree with defendant in both appeals that his global waiver of the right to appeal is unenforceable inasmuch as County Court's colloquy and the written waiver used overbroad language that mischaracterized the waiver as an absolute bar to the taking of an appeal (see People v. Thomas, 34 N.Y.3d 545, 564-566, 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]; People v. McCracken, 217 A.D.3d 1543, 1543-1544, 193 N.Y.S.3d 467 [4th Dept. 2023]; People v. Johnson, 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021]). Nevertheless, contrary to defendant's contention in appeal No. 2, we conclude that defendant's negotiated sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).