THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2016)

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 plea of guilty of criminal contempt in the first degree (Penal Law § 215.51[b][v] ) and assault in the second degree (§ 120.05[2] ).  In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of aggravated family offense (§ 240.75[1] ).  With respect to both appeals, we conclude that the “waiver of the right to appeal is invalid because, based on County Court's statements at the plea proceeding, ‘defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea’ “ (People v. Prince, 141 AD3d 1103, 1104, quoting People v. Moyett, 7 NY3d 892, 893).  We nevertheless conclude that neither sentence is unduly harsh or severe.

In appeal No. 1, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution with respect to the assault count because he did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665).  This case does not fall within the rare exception to the preservation requirement inasmuch as nothing in the plea colloquy “casts significant doubt upon the defendant's guilt [of assault] or otherwise calls into question the voluntariness of the plea” (id. at 666;  see People v. Rinker, 141 AD3d 1177, 1177).  We decline to exercise our power to review defendant's challenge as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).

Frances E. Cafarell

Clerk of the Court