PEOPLE v. HAENELT (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 1, 2015, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of a six-count indictment, defendant pleaded guilty to burglary in the second degree and purportedly waived his right to appeal.  County Court thereafter sentenced him, as a second felony offender, to five years in prison, to be followed by five years of postrelease supervision, with the prison sentence to run consecutively to a prison sentence he was already serving.  Defendant now appeals.

Initially, we agree with defendant that his appeal waiver was not valid.  County Court failed to distinguish the right to appeal from those rights automatically forfeited by a guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Blanco, 156 A.D.3d 945, 946, 66 N.Y.S.3d 722 [2017] ).  Further, although defendant executed a written waiver, County Court did not “ensure that defendant understood the content or consequences of the appeal waiver” (People v. Williams, 132 A.D.3d 1155, 1155, 20 N.Y.S.3d 176 [2015], lv denied 27 N.Y.3d 1157, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016];  accord People v. Cotto, 156 A.D.3d 1063, 1063, 66 N.Y.S.3d 742 [2017] ).

Defendant also contends that his guilty plea was not knowing, intelligent and voluntary because County Court failed to inform him of the constitutional rights he was giving up by pleading guilty.  This contention is not preserved for our review, inasmuch as the record does not reflect that he made an appropriate postallocution motion (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  People v. Evans, 156 A.D.3d 1246, 1246–1247, 68 N.Y.S.3d 564 [2017];  People v. Bond, 146 A.D.3d 1155, 1156, 44 N.Y.S.3d 776 [2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ).  Moreover, defendant did not make any statements during the plea allocution that cast doubt on his guilt or otherwise called into question the voluntariness of his plea, so as to trigger the narrow exception to the preservation requirement (see People v. Duvall, 157 A.D.3d 1060, 1061, 66 N.Y.S.3d 754 [2018];  People v. Evans, 156 A.D.3d at 1247, 68 N.Y.S.3d 564).  In any event, we would find that County Court adequately advised defendant of the constitutional rights he was forfeiting by pleading guilty and that defendant affirmed his understanding thereof (see People v. Duvall, 157 A.D.3d at 1061, 66 N.Y.S.3d 754;  People v. Bond, 146 A.D.3d at 1156, 44 N.Y.S.3d 776).  Lastly, we are unpersuaded by defendant's contention that his sentence is harsh and excessive because County Court directed that his prison term run consecutively to, rather than concurrently with, a prison term that he was already serving.  The sentence was in accordance with the plea agreement, and our review of the record reveals no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Wolcott, 154 A.D.3d 1001, 1002, 60 N.Y.S.3d 852 [2017];  People v. Eickhoff, 151 A.D.3d 1120, 1120–1121, 52 N.Y.S.3d 917 [2017], lv denied 29 N.Y.3d 1126, 64 N.Y.S.3d 676, 86 N.E.3d 568 [2017] ).

ORDERED that the judgment is affirmed.

Clark, J.

McCarthy, J.P., Devine, Aarons and Pritzker, JJ., concur.