PEOPLE v. KAPASAKIS (2020)

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered September 22, 2016, convicting defendant, upon his plea of guilty, of criminal contempt in the first degree, and sentencing him to a term of 90 days and three years' probation, unanimously affirmed.

Defendant has not preserved his challenge to the validity of his guilty plea, as he did not move to vacate his plea before sentencing (People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016]).  This case does not fall within the “narrow exception” where, because of the sequence of events, the defendant has “no practical ability” to move to withdraw his plea (id. at 220–221, 32 N.Y.S.3d 17, 51 N.E.3d 528), Defendant, who was represented by counsel, had the opportunity to seek relief from the sentencing court (see People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]).  As an alternative holding, we find that defendant's plea was knowing, intelligent and voluntary (see People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995]).  The requisite elements, and defendant's understanding of the crime to which he was pleading guilty, can be readily inferred from the allocution (see People v. McGowen, 42 N.Y.2d 905, 397 N.Y.S.2d 993, 366 N.E.2d 1347 [1977];  see also People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005]).

The sentencing minutes establish that the court imposed an eight-year order of protection under the correct statute.  The use of a printed form referring to a different statute was irrelevant to the order's validity and did not affect any substantial right of defendant (see CPL 470.05[1]).  Because the order ran from the date of sentencing, rather than from the expiration of the sentence, there was no need for a sentence calculation, and thus defendant was not entitled to credit against the order for the eight days he spent in custody (see CPL 530.13[4]).