PEOPLE v. MCDONALD (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him upon his guilty plea of, inter alia, rape in the third degree (Penal Law § 130.25[2] ), and failure to register internet identifiers (Correction Law § 168–f [4] ).  We previously held the case, reserved decision, and remitted the matter to County Court to rule on defendant's motion to withdraw his plea of guilty (People v. McDonald, 125 A.D.3d 1280, 1280, 999 N.Y.S.2d 790 [4th Dept. 2015] ).  Upon remittal, the court denied the motion, and we conclude that the court did not thereby abuse its discretion.  It is well settled that the denial of a motion to withdraw a guilty plea is not an abuse of discretion “unless there is some evidence of innocence, fraud, or mistake in inducing the plea” (People v. Henderson, 137 A.D.3d 1670, 1671 [4th Dept. 2016] [internal quotation marks omitted];  see People v. Noce, 145 A.D.3d 1456, 1457, 43 N.Y.S.3d 626 [4th Dept. 2016];  People v. Ernst, 144 A.D.3d 1605, 1606, 40 N.Y.S.3d 691 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ), and defendant presented no such evidence here.

Defendant's valid waiver of the right to appeal forecloses review of his challenge to the severity of the sentence (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 [1998] ).

Nevertheless, it is well settled that “even a valid waiver of the right to appeal will not bar [review of] an illegal sentence” (People v. Fishel, 128 A.D.3d 15, 17, 6 N.Y.S.3d 312 [3d Dept. 2015];  see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and we note that the sentence imposed by the court on count three of the superior court information, i.e., a determinate term of incarceration for failure to register internet identifiers as a class D felony, is illegal.  That crime is defined in the Correction Law, and “only a person convicted of a felony defined by the Penal Law may be sentenced as a second felony offender” to a determinate term of incarceration (People v. Attea, 269 A.D.2d 829, 829, 703 N.Y.S.2d 804 [4th Dept. 2000];  see People v. Cammarata, 216 A.D.2d 965, 965, 629 N.Y.S.2d 716 [4th Dept. 1995];  cf. Penal Law § 70.80[1][a] ).  “Although [the] issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” (People v. Gibson, 52 A.D.3d 1227, 1227–1228, 859 N.Y.S.2d 821 [4th Dept. 2008] [internal quotation marks omitted] ).  We therefore modify the judgment by vacating the sentence imposed on count three, and we remit the matter to County Court for resentencing on that count.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed on count three of the superior court information and as modified the judgment is affirmed, and the matter is remitted to Niagara County Court for resentencing on that count.

Memorandum: