PEOPLE v. STEINBRECHER (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 two counts of criminal contempt in the first degree (Penal Law § 215.51[b][v] ).  The plea was conducted by County Court, and the proceeding was later transferred to Supreme Court for sentencing.  Contrary to defendant's contention, he knowingly, intelligently, and voluntarily waived his right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).  The record of the plea proceeding establishes that the court engaged him in “an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice ․, and informed him that the waiver was a condition of the plea agreement” (People v. Snyder, 151 A.D.3d 1939, 1939, 54 N.Y.S.3d 899 [4th Dept. 2017] [internal quotation marks omitted] ).  The valid waiver of the right to appeal encompasses defendant's challenges to the factual sufficiency of the plea allocution (see People v. Tyo, 140 A.D.3d 1697, 1698, 31 N.Y.S.3d 732 [4th Dept. 2016], lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 24, 73 N.E.3d 364 [2016]; People v. Gardner, 101 A.D.3d 1634, 1634–1635, 956 N.Y.S.2d 367 [4th Dept. 2012] ).  Defendant's contention that the plea was involuntary because he was confused at the time of the plea, he was coerced into pleading guilty, and he was innocent survives the waiver of the right to appeal (see People v. Cyganik, 154 A.D.3d 1336, 1337, 63 N.Y.S.3d 623 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ), and he preserved that contention for our review through his motion to withdraw the plea (see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).  Defendant's contention, however, is belied by his responses during the plea colloquy (see People v. McCullen, 162 A.D.3d 1661, 1661, 79 N.Y.S.3d 440 [4th Dept. 2018] ).  We reject defendant's related contention that the courts abused their discretion in denying his motion and renewed motion to withdraw the plea (see People v. Haffiz, 19 N.Y.3d 883, 884, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012]; People v. Dale, 142 A.D.3d 1287, 1289, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ).

Defendant failed to preserve for our review his contention that the sentencing court erred in failing to redact the presentence report (see Tyo, 140 A.D.3d at 1698, 31 N.Y.S.3d 732; People v. Tolliver, 55 A.D.3d 1302, 1302, 865 N.Y.S.2d 423 [4th Dept. 2008] ).  Defendant made only general complaints about the report, did not set forth any specific arguments, and made no motion to redact the report (see Tyo, 140 A.D.3d at 1698, 31 N.Y.S.3d 732).  We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).  Finally, the valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentence (see People v. Carr, 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017]; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012]; see generally Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).