PEOPLE v. HUNTLEY (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered August 7, 2017, convicting defendant upon her plea of guilty of the crime of robbery in the first degree.

In full satisfaction of an 11–count indictment, defendant pleaded guilty to robbery in the first degree and waived her right to appeal. County Court then sentenced her, as a second felony offender and in accordance with the terms of the plea agreement, to a prison term of nine years, followed by five years of postrelease supervision, and issued an order of protection in favor of the victim. Defendant appeals.

Defendant initially contends that her plea was not knowing, voluntary and intelligent because her factual allocution did not establish each element of robbery in the first degree. Essentially, this amounts to a challenge to the factual sufficiency of the plea allocution that, despite defendant's contention to the contrary, is precluded by her unchallenged waiver of the right to appeal (see People v. Hummel–Parker, 171 A.D.3d 1397, 1398, 97 N.Y.S.3d 539 [2019]; People v. Peryea, 169 A.D.3d 1120, 1121, 93 N.Y.S.3d 456 [2019], lv denied 33 N.Y.3d 980, 101 N.Y.S.3d 242, 124 N.E.3d 731 [2019]). To the extent that defendant's contention constitutes a challenge to the voluntariness of her plea, which survives even a valid appeal waiver, it is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion, despite ample time to do so prior to sentencing (see People v. Favreau, 174 A.D.3d 1226, 1227, 105 N.Y.S.3d 721 [2019]; People v. Putman, 169 A.D.3d 1114, 1115, 93 N.Y.S.3d 461 [2019]), and the narrow exception to the preservation requirement was not triggered here (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016]; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).

Defendant next claims that County Court failed to comply with the requirements of CPL 530.13(4) by not articulating its reasons for issuing the subject order of protection. Assuming that this argument survives defendant's unchallenged waiver of the right to appeal (see People v. Collins, 117 A.D.3d 1535, 1535, 985 N.Y.S.2d 373 [2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014]; People v. Kulyeshie, 71 A.D.3d 1478, 1479, 895 N.Y.S.2d 909 [2010], lv denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010]), it is also not preserved as defendant failed to raise this issue at sentencing and did not move to amend the final order of protection on this ground (see People v. Bryant, 132 A.D.3d 502, 502, 17 N.Y.S.3d 643 [2015], lv denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015]; People v. Fortier, 130 A.D.3d 642, 643, 12 N.Y.S.3d 283 [2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015]), and the illegal sentence exception to the preservation rule is inapplicable (see People v. Nieves, 2 N.Y.3d 310, 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004]). In any event, the Criminal Procedure Law only imposes such requirement upon the court when, unlike here, a temporary order of protection was initially issued (see CPL 530.13[4]).

Lastly, defendant's claim that she was illegally sentenced as a second felony offender because County Court did not comply with the requirements of CPL 400.21(3) survives the appeal waiver (see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992]; People v. Parker, 121 A.D.3d 1190, 1190, 996 N.Y.S.2d 376 [2014]; People v. Ladson, 30 A.D.3d 836, 837, 817 N.Y.S.2d 722 [2006], lv denied 7 N.Y.3d 814, 822 N.Y.S.2d 489, 855 N.E.2d 805 [2006]), but it is unpreserved for our review given the lack of an objection by defendant at sentencing (see People v. Stewart, 156 A.D.3d 1059, 1059, 65 N.Y.S.3d 484 [2017]; People v. Melton, 136 A.D.3d 1069, 1070, 24 N.Y.S.3d 440 [2016], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016]; People v. Jackson, 114 A.D.3d 807, 809, 979 N.Y.S.2d 704 [2014], lv denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014]). In any event, the court was not obligated to expressly advise defendant of her right to contest the constitutionality of the prior conviction (see People v. Melton, 136 A.D.3d at 1070, 24 N.Y.S.3d 440; People v. Dixon, 118 A.D.3d 1188, 1189, 987 N.Y.S.2d 704 [2014]); defendant was provided with notice of her predicate felony conviction prior to sentencing, given an opportunity to be heard regarding as much and, upon the court's inquiry, admitted that she was the person convicted of the felony in the predicate felony statement. Thus, under these circumstances, we would find that there was substantial compliance with CPL 400.21(3) (see People v. Stewart, 156 A.D.3d at 1059, 65 N.Y.S.3d 484; People v. Thorpe, 141 A.D.3d 927, 935, 35 N.Y.S.3d 769 [2016], lv denied 28 N.Y.3d 1031, 45 N.Y.S.3d 383, 68 N.E.3d 112 [2016]; People v. Densmore, 120 A.D.3d 844, 845, 990 N.Y.S.2d 373 [2014]; People v. Morse, 111 A.D.3d 1161, 1161, 975 N.Y.S.2d 496 [2013], lv denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014]; People v. Walton, 101 A.D.3d 1489, 1490, 956 N.Y.S.2d 705 [2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013]).

ORDERED that the judgment is affirmed.

Mulvey, J.

Garry, P.J., Lynch and Devine, JJ., concur.