PEOPLE v. FAVREAU (2019)

MEMORANDUM AND ORDER

In satisfaction of a six-count indictment charging defendant with rape in the first degree and other crimes, defendant pleaded guilty to the reduced charge of rape in the second degree under the first count of the indictment.  Pursuant to the terms of the plea agreement, which included a waiver of appeal, defendant was promised a prison sentence of five years followed by five years of postrelease supervision.  At sentencing, County Court imposed the agreed-upon sentence on defendant, as an admitted second felony offender.  Defendant appeals.¹

We affirm.  Initially, we agree with defendant that his waiver of appeal is not valid.  Although an appeal waiver was recited as a condition of the plea agreement, defendant never actually waived this right during the plea allocution and the record does not reflect that he had a “ ‘full appreciation of the consequences’ ” of the waiver so as to establish that it was knowing, voluntary and intelligent (People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011], quoting People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]).  Although the record contains a written waiver of appeal apparently executed on the day of the plea allocution, County Court (Ryan, J.) “did not adequately ensure that defendant had read the waiver or understood its contents or ramifications” (People v. Alolafi, 170 A.D.3d 1379, 1380, 96 N.Y.S.3d 720 [2019];  see People v. Haenelt, 161 A.D.3d 1489, 1489, 77 N.Y.S.3d 770 [2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018]).

Defendant's challenges to his guilty plea as not knowing, voluntary and intelligent, and to the sufficiency of the factual allocution, were not preserved by an appropriate postallocution motion, despite ample time to do so (see CPL 220.60[3];  People v. Williams, 27 N.Y.3d 212, 219–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016];  People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Kruppenbacher, 163 A.D.3d 1266, 1267, 80 N.Y.S.3d 740 [2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018];  People v. Butler, 134 A.D.3d 1349, 1350, 22 N.Y.S.3d 617 [2015], lvs denied 27 N.Y.3d 962, 963, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016]).  Contrary to defendant's claims, a pleading defendant need not recite every element of the crime or provide a “factual exposition” (People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005]).  Moreover, where, as here, a defendant pleads to a lesser crime as part of a plea bargain, the court is “not required to engage in a factual recitation in order to establish the elements of the crime” (People v. Hollenbeck, 152 A.D.3d 974, 975, 60 N.Y.S.3d 521 [2017] [internal quotation marks and citation omitted], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017];  see People v. Clairborne, 29 N.Y.2d 950, 951, 329 N.Y.S.2d 580, 280 N.E.2d 366 [1972]);  under these circumstances, “no factual basis for the plea is required” and a defendant “ ‘can even plead guilty to crimes that do not exist’ ” (People v. Banks, 137 A.D.3d 1458, 1459, 29 N.Y.S.3d 73 [2016], quoting People v. Johnson, 23 N.Y.3d 973, 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 [2014]).  Contrary to his claim, defendant did not make any statements during his plea allocution or at sentencing that were inconsistent with his guilt of the reduced crime or called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation rule (see People v. Tyrell, 22 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013];  People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).  Defendant's statements at sentencing disparaging the victim's motives and veracity did not impose upon County Court (Bruno, J.) a duty of further inquiry (cf.  People v. Brassard, 166 A.D.3d 1312, 1313, 87 N.Y.S.3d 738 [2018];  People v. Chin, 160 A.D.3d 1038, 1039–1040, 73 N.Y.S.3d 685 [2018]).  Defendant's remaining claims also lack merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Although defendant's pro se notice of appeal contains an incorrect date for the judgment of conviction, we exercise our discretion to overlook this inaccuracy and treat the notice of appeal as valid (see CPL 460.10[6];  People v. Dunn, 160 A.D.3d 1202, 1202 n, 75 N.Y.S.3d 650 [2018]).

Clark, J.

Egan Jr., J.P., Lynch, Devine and Pritzker, JJ., concur.