PEOPLE v. ROGERS (2018)

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 attempted assault in the first degree (Penal Law §§ 110.00, 120.10[1] ).  We agree with defendant that his waiver of the right to appeal is not valid inasmuch as County Court conflated the right to appeal with those rights automatically forfeited by the guilty plea (see People v. Hawkins, 94 A.D.3d 1439, 1439–1440, 942 N.Y.S.2d 300 [4th Dept. 2012], lv denied 19 N.Y.3d 974, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012] ).  Thus, the record fails to establish that “defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ).

With respect to the merits of the appeal, even assuming, arguendo, that defendant's contention that some of the proceedings were electronically recorded and later transcribed in violation of Judiciary Law § 295 survives his guilty plea (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 for our review inasmuch as defendant did not object to the court's use of the electronic recording device and the absence of a stenographer (see People v. Clark, 142 A.D.3d 1339, 1340, 39 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ).  In any event, defendant did not satisfactorily demonstrate that he was prejudiced in taking his appeal such that reversal is warranted (see People v. Wanass, 55 Misc.3d 97, 100, 54 N.Y.S.3d 488 [App. Term, 1st Dept. 2017] ).  We further conclude that defendant's sentence is not unduly harsh or severe.

Defendant has failed to preserve his remaining contentions for our review, and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).