PEOPLE v. PEREZ (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas De Rosa, J.), rendered June 21, 2016, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenges to the validity of his plea of guilty are unpreserved for appellate review because he failed to move to withdraw his plea on these grounds before the County Court (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668;  People v. Villalobos, 71 A.D.3d 924, 924, 895 N.Y.S.2d 867;  People v. Ross, 41 A.D.3d 870, 870, 841 N.Y.S.2d 310).  In any event, the record as a whole affirmatively demonstrates that the defendant entered his plea of guilty knowingly, voluntarily, and intelligently (see People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199;  People v. Thomas, 150 A.D.3d 770, 771, 53 N.Y.S.3d 195).

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297).  Although the defendant signed a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature (see People v. Guarchaj, 122 A.D.3d 878, 879, 996 N.Y.S.2d 372;  People v. Pelaez, 100 A.D.3d 803, 803, 954 N.Y.S.2d 554).  As the defendant's purported waiver of his right to appeal was invalid, it does not does not preclude appellate review of his excessive sentence claim.

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

DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.