PEOPLE v. HODGE (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting her, upon her plea of guilty, of kidnapping in the second degree (Penal Law § 135.20).  Defendant's contention that the written waiver of indictment failed to comply with CPL 195.20 is forfeited by her guilty plea (see People v. Thomas, 34 N.Y.3d 545, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, *8 (Nov. 26, 2019).  Contrary to defendant's further contention, she validly waived her right to appeal (see People v. Bradley, 177 A.D.3d 1325, 1325, 110 N.Y.S.3d 379 (4th Dept. 2019);  People v. Allen, 174 A.D.3d 1456, 1457, 108 N.Y.S.3d 243 (4th Dept. 2019), lv denied 34 N.Y.3d 978, 113 N.Y.S.3d 663, 137 N.E.3d 33 [2019];  People v. Rodriguez, 93 A.D.3d 1334, 1335, 940 N.Y.S.2d 508 (4th Dept. 2012), lv denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012]).  Defendant's challenge to the severity of her sentence is foreclosed by her valid waiver of the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).

Although they survive her valid waiver of the right to appeal, defendant's challenges to the voluntariness of her guilty plea are unpreserved for appellate review because she never moved to withdraw her plea or to vacate the judgment of conviction on those grounds (see People v. Ware, 115 A.D.3d 1235, 1235, 982 N.Y.S.2d 270 (4th Dept. 2014)).  Contrary to defendant's contention, her reluctance during the plea colloquy to name the accomplice that threatened to kill the victim did not negate an element of the crime to which she pleaded guilty for purposes of the exception to the preservation requirement (see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).  In any event, defendant's challenges to the voluntariness of her guilty plea lack merit (see People v. Rathburn, 178 A.D.3d 1421, 1421–1422, 112 N.Y.S.3d 654 (4th Dept. 2019);  People v. Eagle, 105 A.D.3d 1453, 1454, 963 N.Y.S.2d 499 (4th Dept. 2013), lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013]; see also People v. Moore, 97 A.D.3d 850, 851, 947 N.Y.S.2d 231 (3d Dept. 2012)).