PEOPLE v. WHITTAKER (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Evan Inlaw, J.), rendered July 23, 2024, convicting him of reckless endangerment in the first degree and criminal possession of a firearm, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Batista, 167 A.D.3d 69, 76–78, 86 N.Y.S.3d 492).  The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the factual sufficiency of the plea allocution (see People v. Heath, 218 A.D.3d 693, 694, 192 N.Y.S.3d 253;  People v. Headley, 197 A.D.3d 1329, 1330, 151 N.Y.S.3d 905).

To the extent that the defendant contends that the factual insufficiency of the plea allocution rendered his plea involuntary and unintelligent, this contention survives a valid waiver of the right to appeal (see People v. Prenaj, 239 A.D.3d 1001, 1001, 235 N.Y.S.3d 181;  People v. Javiel, 231 A.D.3d 967, 967, 219 N.Y.S.3d 139).  However, the contention is unpreserved for appellate review, as the defendant did not move to withdraw his plea or otherwise raise this issue before the County Court (see CPL 470.05[2];  People v. Lopez, 71 N.Y.2d 662, 663, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Escobargarcia, 237 A.D.3d 1221, 1222, 231 N.Y.S.3d 627).  The exception to the preservation requirement does not apply in this case, because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

In any event, the plea allocution was sufficient.  “[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 at 967, 219 N.Y.S.3d 139).  Here, the record demonstrates that the defendant understood the charges and made a voluntary and intelligent decision to enter the plea.

The defendant's valid waiver of his right to appeal does not preclude appellate review of his contention that he did not knowingly, voluntarily, and intelligently waive his right to be prosecuted by indictment (see People v. Okay, 172 A.D.3d 1104, 1105, 98 N.Y.S.3d 473;  People v. Cardona–Velasquez, 152 A.D.3d 618, 618, 55 N.Y.S.3d 672).  However, the contention is without merit.  The record discloses that the defendant signed a valid written waiver of indictment in open court and in the presence of his attorney (see N.Y. Const, art I, § 6;  CPL 195.20;  People v. Cardona–Velasquez, 152 A.D.3d at 618, 55 N.Y.S.3d 672), and there is no “record evidence suggesting that [the] defendant's waiver was involuntary, unknowing or unintelligent” (People v. Myers, 32 N.Y.3d 18, 23, 84 N.Y.S.3d 406, 109 N.E.3d 555).  The defendant's contentions that he did not have adequate time to review the waiver of indictment and that he did not understand what he was signing are “belied by the record” (People v. Okay, 172 A.D.3d at 1105, 98 N.Y.S.3d 473), as the defendant expressly acknowledged that he had an opportunity to read and discuss the waiver of indictment with his attorney before signing it and that he understood the contents of the written waiver (see People v. Giddens, 172 A.D.3d 1402, 1402, 98 N.Y.S.3d 906;  People v. Hickson, 165 A.D.3d 1166, 1167, 85 N.Y.S.3d 546).

GENOVESI, J.P., CHAMBERS, VOUTSINAS and HOM, JJ., concur.