PEOPLE v. CJ LOLLIE (2022)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon a plea of guilty of assault in the first degree (Penal Law § 120.10 [1]), defendant contends that his waiver of the right to appeal is invalid, that he was improperly sentenced as a second felony offender, and that his negotiated sentence is unduly harsh and severe. We conclude that, during the plea colloquy, Supreme Court “made clear to defendant that the right to appeal was separate and distinct from the other rights that are automatically forfeited upon a plea of guilty” (People v. Johnson, 140 A.D.3d 1738, 1738, 32 N.Y.S.3d 543 [4th Dept. 2016]) and specifically informed defendant that the waiver of the right to appeal precluded him from challenging the severity of the bargained-for sentence (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012]; People v. Fowler, 134 A.D.3d 1529, 1530, 21 N.Y.S.3d 909 [4th Dept. 2015], lv denied 27 N.Y.3d 996, 38 N.Y.S.3d 106, 59 N.E.3d 1218 [2016]). Consequently, defendant knowingly, voluntarily, and intelligently waived the right to appeal (see generally Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and the valid waiver encompasses his challenge to the severity of the sentence (see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 [1998]; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998]).

With respect to defendant's contention that he was improperly sentenced as a second felony offender, the People correctly concede that a challenge to the legality of the sentence is not foreclosed by the valid waiver of the right to appeal (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Lopez, 164 A.D.3d 1625, 1625, 82 N.Y.S.3d 686 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 587, 121 N.E.3d 214 [2019]).

Defendant contends that he was improperly sentenced as a second felony offender because the federal predicate conviction is not the equivalent of a New York felony, but he failed to preserve that contention for our review (see People v. Wingfield, 181 A.D.3d 1253, 1254, 120 N.Y.S.3d 671 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 857, 151 N.E.3d 538 [2020], reconsideration denied 35 N.Y.3d 1098, 131 N.Y.S.3d 294, 155 N.E.3d 787 [2020]), and it does not fall within the narrow exception to the preservation rule that applies “when a sentence's illegality is readily discernible from the trial record” (People v. Santiago, 22 N.Y.3d 900, 903, 977 N.Y.S.2d 144, 999 N.E.2d 507 [2013]). Indeed, the record submitted to this Court is insufficient to determine whether the federal conviction is the equivalent of a New York felony. Inasmuch as, under these circumstances, “[a] CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as ‘unauthorized, illegally imposed or otherwise invalid as a matter of law’ (CPL 440.20 [1]), and a determination of second felony offender status is an aspect of the sentence” (People v. Jurgins, 26 N.Y.3d 607, 612, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015]), we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see Wingfield, 181 A.D.3d at 1254, 120 N.Y.S.3d 671; cf. People v. Hall, 149 A.D.3d 1610, 1610, 51 N.Y.S.3d 478 [4th Dept. 2017]).

Defendant also contends that he was improperly sentenced as a second felony offender because the predicate felony offender statement failed to include the requisite tolling periods. Defendant, however, failed to preserve that contention and it is not reviewable under the narrow illegal sentence exception to the preservation requirement because the illegality of the sentence is “not ‘readily discernible from the trial record’ ” (People v. Lashley, 37 N.Y.3d 1140, 1141, 159 N.Y.S.3d 391, 180 N.E.3d 555 [2021]).

Defendant further failed to preserve for our review his contention that he was not properly sentenced as a second felony offender because the court failed to inform him of his right to contest the predicate conviction (see People v. Manigault, 145 A.D.3d 1428, 1430, 44 N.Y.S.3d 620 [4th Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017]; People v. Irvin, 111 A.D.3d 1294, 1296-1297, 974 N.Y.S.2d 214 [4th Dept. 2013], lv denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014], reconsideration denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015]; see generally CPL 400.21 [3]). In any event, that contention lacks merit. Defendant acknowledged his prior conviction and we conclude that “the record establishes that defendant had an opportunity to controvert the allegations in the second felony offender statement but did not do so” (Manigault, 145 A.D.3d at 1430, 44 N.Y.S.3d 620; see Irvin, 111 A.D.3d at 1297, 974 N.Y.S.2d 214; cf. People Davis [appeal No. 1], 226 A.D.2d 1081, 1081, 642 N.Y.S.2d 114 [4th Dept. 1996], lv denied 88 N.Y.2d 935, 647 N.Y.S.2d 168, 670 N.E.2d 452 [1996]).

Finally, we reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to raise any challenge to the predicate felony offender statement (see People v. Barton, 200 A.D.2d 888, 888, 606 N.Y.S.2d 842 [3d Dept. 1994], lv denied 83 N.Y.2d 849, 612 N.Y.S.2d 380, 634 N.E.2d 981 [1994]; see also People v. Crippa, 245 A.D.2d 811, 812, 666 N.Y.S.2d 781 [3d Dept. 1997], lv denied 92 N.Y.2d 850, 677 N.Y.S.2d 80, 699 N.E.2d 440 [1998]). Here, defense counsel negotiated a plea that “substantially reduced defendant's exposure to a much more lengthy term of imprisonment” (Barton, 200 A.D.2d at 888, 606 N.Y.S.2d 842). We conclude that “[i]n negotiating the plea in question, it cannot be said that defense counsel did not provide meaningful representation” (id.; see generally People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).