PEOPLE v. RICOTTILLI (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Hyun Chin Kim, J.), rendered July 17, 2023, convicting him of operating a motor vehicle while under the influence of alcohol, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 254, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Ponce, 232 A.D.3d 741, 741, 221 N.Y.S.3d 659).

Although the defendant's contention that his plea of guilty was not knowing, voluntary, or intelligent survives his valid waiver of the right to appeal (see People v. Janagal, 223 A.D.3d 915, 916, 202 N.Y.S.3d 460), it is unpreserved for appellate review since he did not move to withdraw his plea on this ground prior to the imposition of sentence or otherwise raise the issue before the County Court (see People v. Potik, 223 A.D.3d 916, 917, 202 N.Y.S.3d 463;  People v. Garner, 198 A.D.3d 813, 814, 152 N.Y.S.3d 619).  In any event, the record demonstrates that the defendant's plea was knowingly, voluntarily, and intelligently entered (see People v. Ruiz, 226 A.D.3d 1053, 209 N.Y.S.3d 564;  People v. McDonnell, 214 A.D.3d 826, 827, 183 N.Y.S.3d 756).

The defendant's contention that Penal Law § 60.21 is unconstitutional was not raised before the County Court, and therefore it is unpreserved for appellate review (see People v. David, 41 N.Y.3d 90, 95–96, 207 N.Y.S.3d 456, 231 N.E.3d 402;  People v. Chase, 223 A.D.3d 913, 913, 204 N.Y.S.3d 221;  People v. Manners, 217 A.D.3d 683, 685, 191 N.Y.S.3d 90).  In any event, the contention is without merit (see People v. Smith, 154 A.D.3d 714, 715, 60 N.Y.S.3d 844).

The defendant's valid waiver of his right to appeal precludes appellate review of his contentions that he was sentenced in violation of his right against double jeopardy (see People v. Muniz, 91 N.Y.2d 570, 574, 673 N.Y.S.2d 358, 696 N.E.2d 182;  People v. Rivera, 226 A.D.3d 929, 931, 209 N.Y.S.3d 532), that his sentence was excessive (see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Batista, 167 A.D.3d 69, 70, 86 N.Y.S.3d 492), and that his sentence violates the constitutional proscription against cruel and unusual punishment (see People v. Florio, 179 A.D.3d 834, 835, 113 N.Y.S.3d 886;  People v. Brathwaite, 263 A.D.2d 89, 92, 703 N.Y.S.2d 191).

GENOVESI, J.P., BRATHWAITE NELSON, VENTURA and MCCORMACK, JJ., concur.