PEOPLE v. GALICIA (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Caryn R. Fink, J.), rendered January 12, 2023, convicting him of operating a motor vehicle while under the influence of alcohol or drugs, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his waiver of the right to appeal was invalid and, therefore, his plea of guilty should be vacated.  However, even if the defendant did not validly waive his right to appeal, “it would not render his guilty plea involuntary so as to require that we invalidate the plea or entitle him to withdraw his guilty plea” (People v. Thomas, 190 A.D.3d 1157, 1159, 139 N.Y.S.3d 458).  Instead, we would not enforce the appeal waiver and would proceed to address the issues raised on appeal that are reviewable in the absence of a valid appeal waiver (see id.;  see also People v. Murray, 169 A.D.3d 227, 233, 93 N.Y.S.3d 694).  “Thus, an unenforceable appeal waiver does not automatically void a knowing, voluntary and intelligent guilty plea” (People v. Thomas, 190 A.D.3d at 1159, 139 N.Y.S.3d 458).  “Further, a defendant may challenge the voluntariness of a guilty plea regardless of the validity of a waiver of appeal” (id.;  see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Coleman, 164 A.D.3d 518, 77 N.Y.S.3d 884).

Here, to the extent that the defendant contends that his plea of guilty was not knowingly, voluntarily, and intelligently entered, that contention is unpreserved for appellate review, as he did not move to withdraw the plea or otherwise object to it prior to sentencing (see CPL 470.05[2];  People v. Osorio–Rivera, 191 A.D.3d 902, 138 N.Y.S.3d 390;  People v. Murray, 186 A.D.3d 625, 126 N.Y.S.3d 665).  In any event, the record as a whole affirmatively demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Osorio–Rivera, 191 A.D.3d 902, 138 N.Y.S.3d 390;  People v. Robinson, 144 A.D.3d 1055, 40 N.Y.S.3d 909;  People v. Byrd, 100 A.D.3d 1013, 954 N.Y.S.2d 464).

Since the defendant raises no other issues on appeal, his contentions regarding the validity of his appeal waiver are academic and we affirm the judgment (see People v. Castro, 192 A.D.3d 1041, 140 N.Y.S.3d 759;  People v. Howell, 156 A.D.3d 815, 816, 65 N.Y.S.3d 721).

CONNOLLY, J.P., CHAMBERS, GENOVESI and WAN, JJ., concur.