PEOPLE v. VOTRA (2019)

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 his plea of guilty of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[1] ).  Contrary to defendant's contention, the record establishes that he knowingly, intelligently, and voluntarily waived his right to appeal, and that he understood that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016];  People v. Moore, 158 A.D.3d 1312, 1312, 68 N.Y.S.3d 361 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ).

Even assuming, arguendo, that defendant's contention that the proceedings were electronically recorded and later transcribed in violation of Judiciary Law § 295 survives both the guilty plea and waiver of the right to appeal (see generally People v. Harrison, 85 N.Y.2d 794, 796–797, 628 N.Y.S.2d 939, 652 N.E.2d 638 [1995] ), we conclude that the contention is unpreserved because defendant did not object to the use of the electronic recording device or the absence of a stenographer (see People v. Bennett, 165 A.D.3d 1624, 1625, 85 N.Y.S.3d 662 [4th Dept. 2018];  People v. Rogers, 159 A.D.3d 1558, 1559, 72 N.Y.S.3d 758 [4th Dept. 2018], lv denied 31 N.Y.3d 1152, 83 N.Y.S.3d 434, 108 N.E.3d 508 [2018] ).  Regardless, neither reversal nor a reconstruction hearing is required here because defendant failed to demonstrate that he was prejudiced by the use of a transcribed recording instead of a stenographer (see Harrison, 85 N.Y.2d at 796, 628 N.Y.S.2d 939, 652 N.E.2d 638;  cf. People v. Henderson, 140 A.D.3d 1761, 1761, 32 N.Y.S.3d 429 [4th Dept. 2016] ).

Although not precluded by the valid waiver of the right to appeal, defendant's contention that his guilty plea was not knowing, intelligent, and voluntary is not preserved because he did not move to withdraw the plea or to vacate the judgment of conviction on the ground now asserted on appeal (see People v. Smith, 162 A.D.3d 1597, 1597, 78 N.Y.S.3d 822 [4th Dept. 2018], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018];  People v. Sanford, 138 A.D.3d 1435, 1436, 30 N.Y.S.3d 440 [4th Dept. 2016] ).

Finally, the valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentence.