PEOPLE v. LUGO (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Peter F. Vallone, Jr., J.), rendered April 25, 2022, convicting him of criminal possession of a weapon in the fourth degree, 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).

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea ․ or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” (People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617).  However, the defendant's claim is reviewable on direct appeal because he faced a practical inability to move to withdraw his plea, since he entered a plea of guilty and was sentenced in the same proceeding (see People v. Sougou, 26 N.Y.3d 1052, 1054, 23 N.Y.S.3d 121, 44 N.E.3d 196;  People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199).  In any event, the defendant's contention is without merit.  “[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime,” and a plea allocution is sufficient if it “shows that the defendant understood the charges and made an intelligent decision to enter a plea” (People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692;  see People v. Javiel, 231 A.D.3d 967, 219 N.Y.S.3d 139;  People v. Marinos, 209 A.D.3d 875, 875–876, 176 N.Y.S.3d 316).  Here, the record demonstrates that the defendant understood the charges and made a voluntary and intelligent decision to enter the plea.

Moreover, the defendant's contention that the plea was rendered involuntary because the brief factual allocution was conducted by the prosecutor is without merit.  “The Supreme Court conducted the initial voir dire, and to the extent that the prosecution directed questions as part of the plea allocution, the court supervised such voir dire and it did not constitute an abrogation of the court's responsibility” (People v. Singh, 158 A.D.3d 824, 825, 68 N.Y.S.3d 888;  see People v. Linares, 116 A.D.3d 792, 982 N.Y.S.2d 901).

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.