PEOPLE v. LAMONDIE (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Franklin County (Derek P. Champagne, J.), rendered June 13, 2022, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

Defendant and his codefendants were charged in a 15–count indictment with, among other crimes, offenses relating to the unlawful entry of a dwelling and injury of an occupant therein.  In full satisfaction of the five counts applicable to him,¹ defendant pleaded guilty to attempted burglary in the second degree and waived his right to appeal, both orally and in writing, with the understanding that there would be no sentencing commitment by the People or from County Court.  At sentencing, County Court sentenced defendant to a prison term of 61/212 years, to be followed by three years of postrelease supervision.  Defendant appeals.

Defendant's challenge to the voluntariness of his guilty plea survives his unchallenged appeal waiver (see People v. Bond, 146 A.D.3d 1155, 1156, 44 N.Y.S.3d 776 [3d Dept. 2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017];  People v. Giammichele, 144 A.D.3d 1320, 1320, 40 N.Y.S.3d 794 [3d Dept. 2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017]), but is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Pastor, 28 N.Y.3d 1089, 1090, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  People v. Small, 166 A.D.3d 1237, 1238, 86 N.Y.S.3d 677 [3d Dept. 2018];  People v. Caraballo, 208 A.D.2d 413, 413, 617 N.Y.S.2d 300 [1st Dept. 1994], lv denied 84 N.Y.2d 1010, 622 N.Y.S.2d 921, 647 N.E.2d 127 [1994];  see also People v. Delorbe, 35 N.Y.3d 112, 119–120, 125 N.Y.S.3d 327, 149 N.E.3d 20 [2020]).²  Further, defendant did not make any statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement or obligate County Court to inquire whether defendant was aware of any potential affirmative defenses (see People v. Pastor, 28 N.Y.3d at 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42;  People v. Robert, 214 A.D.3d 1085, 1086–1087, 184 N.Y.S.3d 488 [3d Dept. 2023], lv denied 39 N.Y.3d 1156, 190 N.Y.S.3d 699, 211 N.E.3d 1152 [2023];  People v. Gumbs, 182 A.D.3d 701, 702–703, 122 N.Y.S.3d 746 [3d Dept. 2020], lv denied 35 N.Y.3d 1066, 129 N.Y.S.3d 398, 152 N.E.3d 1200 [2020];  People v. Quell, 166 A.D.3d 1388, 1389, 86 N.Y.S.3d 814 [3d Dept. 2018], lv denied 32 N.Y.3d 1208, 99 N.Y.S.3d 204, 122 N.E.3d 1117 [2019];  compare People v. Gresham, 151 A.D.3d 1175, 1178–1179, 57 N.Y.S.3d 532 [3d Dept. 2017];  People v. DeJesus, 144 A.D.3d 1564, 1565, 40 N.Y.S.3d 831 [4th Dept. 2016]).  Were we to address his claim, we would find that the plea colloquy leaves no doubt that defendant was aware of the rights he was giving up, including any defenses that he could raise at trial, by pleading guilty and that he made a knowing, voluntary and intelligent decision to proceed (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013];  People v. Giammichele, 144 A.D.3d at 1320, 40 N.Y.S.3d 794).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant was charged with burglary in the first degree, burglary in the second degree, assault in the third degree, conspiracy in the fourth degree and tampering with a witness in the second degree.

2.   “To the extent that defendant challenges the factual sufficiency of his plea allocution, this claim is precluded by his [uncontested] waiver of the right to appeal” (People v. Gumbs, 182 A.D.3d 701, 702 n., 122 N.Y.S.3d 746 [3d Dept. 2020] [citations omitted], lv denied 35 N.Y.3d 1066, 129 N.Y.S.3d 398, 152 N.E.3d 1200 [2020]).

Reynolds Fitzgerald, J.

Garry, P.J., Lynch, Pritzker and Powers, JJ., concur.