PEOPLE v. HARRIS (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (Keith M. Bruno, J.), rendered August 2, 2022, convicting defendant upon his plea of guilty of the crime of attempted criminal sexual act in the first degree.

Defendant was charged in a 53–count indictment with two counts of predatory sexual assault against a child, 25 counts of rape in the second degree, 25 counts of criminal sexual act in the second degree and endangering the welfare of a child.  At a scheduled Huntley hearing, defendant's request to adjourn the hearing was denied.  The People stated that any plea offer would be withdrawn once the Huntley hearing commenced, prompting a brief adjournment and further negotiation of the terms of the plea offer.  Defendant ultimately elected to enter an Alford plea to the reduced charge of attempted criminal sexual act in the first degree and agreed to waive his right to appeal.

At sentencing, County Court denied defendant's request to strike certain information contained in the presentence report, including alleged statements by defendant and an evaluative assessment.  County Court then sentenced defendant, as a second felony offender, to the agreed-upon prison term of five years, to be followed by seven years of postrelease supervision.  Defendant appeals.

Initially, defendant contends that the waiver of his right to appeal is invalid.  We disagree and are satisfied that the record reflects that defendant's voluntary waiver of his right to appeal is valid (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).  Although the written waiver executed by defendant previously has been found to contain overbroad language, here, unlike in those cases, County Court engaged in a thorough oral colloquy, during which it discussed the nature and consequences of the appeal waiver, specifically advised defendant that certain appellate rights survived the waiver and confirmed that defendant had discussed the appeal waiver with counsel, had no further questions and was voluntarily waiving his right to appeal (see People v. Salley, 219 A.D.3d 1613, 1613–1614, 196 N.Y.S.3d 232 [3d Dept. 2023];  People v. Smith, 210 A.D.3d 1207, 1208, 176 N.Y.S.3d 889 [3d Dept. 2022];  People v. Devins, 206 A.D.3d 1365, 1366, 168 N.Y.S.3d 898 [3d Dept. 2022]).  Given the validity of defendant's appeal waiver, his contention that County Court abused its discretion in denying his request for an adjournment of the Huntley hearing is foreclosed (see People v. LaBar, 16 A.D.3d 1084, 1084, 791 N.Y.S.2d 233 [4th Dept. 2005], lv denied 5 N.Y.3d 764, 801 N.Y.S.2d 258, 834 N.E.2d 1268 [2005]), as is his challenge to the court's denial of his request to redact information contained in the presentence report (see People v. Blair, 148 A.D.3d 1426, 1426–1427, 50 N.Y.S.3d 182 [3d Dept. 2017], lv denied 29 N.Y.3d 1029, 62 N.Y.S.3d 297, 84 N.E.3d 969 [2017];  People v. Conley, 135 A.D.3d 1238, 1238, 23 N.Y.S.3d 724 [3d Dept. 2016];  People v. Butler, 134 A.D.3d 1349, 1350, 22 N.Y.S.3d 617 [3d Dept. 2015], lv denied 27 N.Y.3d 963, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016];  People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [3d Dept. 2014], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016]).

Moreover, although not encompassed by the waiver of his right to appeal, defendant's contention that his plea is involuntary is not preserved for our review as the record does not reflect that he made an appropriate postallocution motion, “and the plea allocution does not engender significant doubt regarding defendant's guilt or otherwise call into question the voluntariness of the plea to bring this case within the narrow exception to the preservation requirement” (People v. Retell, 211 A.D.3d 1181, 1182, 179 N.Y.S.3d 462 [3d Dept. 2022] [internal quotation marks and citation omitted];  see People v. Elawar, 204 A.D.3d 1247, 1248–1249, 165 N.Y.S.3d 385 [3d Dept. 2022], lv denied 38 N.Y.3d 1133, 172 N.Y.S.3d 842, 193 N.E.3d 507 [2022];  People v. Crandall, 181 A.D.3d 1091, 1092–1093, 120 N.Y.S.3d 522 [3d Dept. 2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 31, 149 N.E.3d 869 [2020]).  We have examined defendant's remaining contentions and have found them to be without merit.

ORDERED that the judgment is affirmed.

Fisher, J.

Egan Jr., J.P., Pritzker, Lynch and Powers, JJ., concur.