PEOPLE v. BARNES (2022)

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 criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and robbery in the first degree (§ 160.15 [4]). We affirm. Preliminarily, because defendant's challenges to the voluntariness of his plea would survive even a valid waiver of the right to appeal, we need not address the validity of that waiver in regard to those contentions (see People v. Gumpton, 199 A.D.3d 1485, 1485, 154 N.Y.S.3d 896 [4th Dept. 2021]).

Defendant contends that his guilty plea was involuntary because, during the plea colloquy, County Court referenced only his right to a trial, not his right to a jury trial. As defendant correctly concedes, he failed to preserve that contention for our review (see People v. Williams, 185 A.D.3d 1535, 1535, 125 N.Y.S.3d 908 [4th Dept. 2020], lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 526, 158 N.E.3d 543 [2020]; People v. Gillens, 134 A.D.3d 655, 656, 21 N.Y.S.3d 623 [1st Dept. 2015]). In any event, defendant's contention is without merit. By informing defendant during the plea colloquy that, “[b]y giving up your right to trial, you're giving up your right to make the People ․ convince 12 people unanimously beyond a reasonable doubt that you're guilty” and that “[p]leading guilty is the same as if we had that trial and the jury convicted you,” the court did actually inform defendant of his right to a jury trial. Moreover, “a detailed articulation and waiver of the three rights mentioned in Boykin is not constitutionally mandated” (People v. Harris, 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983]), and a court's “omission of the word ‘jury’ in discussing a defendant's right to a trial does not, by itself, vitiate the validity of a guilty plea” (People v. Ayala, 156 A.D.3d 547, 547, 65 N.Y.S.3d 693 [1st Dept. 2017]; see e.g. People v. Mendez, 148 A.D.3d 555, 555, 50 N.Y.S.3d 55 [1st Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017]; People v. Gutierrez, 140 A.D.3d 407, 408, 30 N.Y.S.3d 869 [1st Dept. 2016]).

Defendant further contends that his plea was involuntary because, during the plea colloquy, the court did not advise him that he would be forfeiting his right against self-incrimination by pleading guilty. Defendant failed to preserve that contention for our review (see Williams, 185 A.D.3d at 1535, 125 N.Y.S.3d 908; People v. Velez, 138 A.D.3d 418, 418, 27 N.Y.S.3d 868 [1st Dept. 2016], lv denied 27 N.Y.3d 1140, 39 N.Y.S.3d 122, 61 N.E.3d 521 [2016]). In any event, defendant's contention is without merit. Reviewing “the record as a whole and the circumstances of the plea in its totality,” we conclude that the plea was knowing, intelligent, and voluntary (People v. Tucker, 169 A.D.3d 1368, 1369, 92 N.Y.S.3d 771 [4th Dept. 2019], lv denied 33 N.Y.3d 982, 101 N.Y.S.3d 240, 124 N.E.3d 729 [2019] [internal quotation marks omitted]; see People v. Walker, 151 A.D.3d 569, 569, 54 N.Y.S.3d 282 [1st Dept. 2017]).

Defendant further contends that his guilty plea to robbery in the first degree should be vacated because his factual recitation did not affirmatively establish each and every element of that crime. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his challenge to the factual sufficiency of the allocution, we nevertheless conclude that defendant failed to preserve that contention for our review and that this case does not fall within the rare exception to the preservation requirement (see People v. Carbone, 199 A.D.3d 1489, 1490, 154 N.Y.S.3d 597 [4th Dept. 2021], lv denied 38 N.Y.3d 949, 165 N.Y.S.3d 457, 185 N.E.3d 978 [2022]; cf. People v. Roots, 201 A.D.3d 1364, 1365, 158 N.Y.S.3d 714 [4th Dept. 2022]; see generally People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]). In any event, that contention is without merit. “[A] defendant who pleads guilty need not ‘acknowledge[ ] committing every element of the pleaded-to offense ․ or provide[ ] a factual exposition for each element of the pleaded-to offense’ ․ [and a] plea will not be vacated where, as here, the defendant does not negate an element of the pleaded-to offense during the colloquy or otherwise cast doubt on his or her guilt or the voluntariness of the plea” (People v. Madden, 148 A.D.3d 1576, 1578, 52 N.Y.S.3d 176 [4th Dept. 2017], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017], quoting People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005]).

Finally, we note that the certificate of conviction incorrectly indicates that defendant was sentenced on February 7, 2016, and it must therefore be amended to reflect the correct sentencing date of February 7, 2017 (see People v. Miller, 199 A.D.3d 1342, 1344, 157 N.Y.S.3d 207 [4th Dept. 2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 724, 181 N.E.3d 1152 [2022]).