PEOPLE v. NAVARRO (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Elizabeth N. Warin, J.), rendered May 4, 2022, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal under the totality of the circumstances (see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  Since the defendant did not validly waive his right to appeal, this Court is not precluded from considering the merits of his contention that the sentence imposed was excessive.

Nonetheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's contention that his plea of guilty was not entered knowingly, voluntarily, and intelligently is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise this issue before the Supreme Court (see People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528;  People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346;  People v. Lee, 225 A.D.3d 788, 788–789, 205 N.Y.S.3d 494).  Moreover, the narrow exception to the preservation requirement does not apply in this case (see People v. Williams, 27 N.Y.3d at 214, 32 N.Y.S.3d 17, 51 N.E.3d 528;  People v. Lee, 225 A.D.3d at 788–789, 205 N.Y.S.3d 494;  People v. Morris, 200 A.D.3d 995, 996, 158 N.Y.S.3d 253).  In any event, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Potter, 191 A.D.3d 903, 903–904, 138 N.Y.S.3d 878;  People v. Mack, 168 A.D.3d 1100, 1102, 92 N.Y.S.3d 404).

CONNOLLY, J.P., FORD, VOUTSINAS and HOM, JJ., concur.