PEOPLE v. MORRIS (2021)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jill Konviser, J.), rendered March 6, 2019, convicting him of murder in the second degree and attempted assault in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The charges against the defendant arose from an incident in which he and accomplices allegedly burglarized a home and tied up two elderly occupants, resulting in the death of one of the victims.  The defendant pleaded guilty to murder in the second degree and attempted assault in the first degree.

The defendant's contention that his plea of guilty was not knowing, voluntary, or intelligent because the allocution was factually insufficient is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise object to its entry prior to the imposition of sentence (see People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528;  People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220).  Contrary to the defendant's contention, the “rare case” exception to the preservation requirement does not apply here, as the plea allocution did not cast significant doubt on his guilt, negate an essential element of the crimes, or call into question the voluntariness of the plea (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  see People v. Gudanowski, 187 A.D.3d 1205, 1207, 131 N.Y.S.3d 617;  People v. Lovick, 127 A.D.3d 1108, 1109, 5 N.Y.S.3d 878).

In any event, the record shows that the defendant was adequately advised of the constitutional rights he was forfeiting by pleading guilty (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274), and the record affirmatively demonstrates the defendant's understanding, and knowing and voluntary waiver, of these rights (see People v. Flinn, 188 A.D.3d 1093, 1093, 132 N.Y.S.3d 657, 660;  People v. Sherman, 177 A.D.3d 777, 779, 110 N.Y.S.3d 314).  Moreover, the facts to which the defendant admitted during his plea allocution were sufficient to establish the elements of the crime of burglary, which was the predicate felony for the felony murder conviction (see People v. Mills, 181 A.D.3d 718, 719, 117 N.Y.S.3d 880;  People v. Chambers, 177 A.D.3d 645, 646, 112 N.Y.S.3d 164;  People v. Duran, 157 A.D.3d 598, 69 N.Y.S.3d 637;  People v. Davis, 114 A.D.3d 697, 979 N.Y.S.2d 821, 824;  People v. Wray, 44 A.D.3d 551, 843 N.Y.S.2d 630).

The defendant did not validly waive the right to appeal, as the colloquy improperly mischaracterized the parameters of the waiver (see People v. Risco, 165 A.D.3d 703, 704, 84 N.Y.S.3d 541), as did the written waiver form (see People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Perrella, 188 A.D.3d 1263, 1264, 132 N.Y.S.3d 800;  People v. Cardwell, 188 A.D.3d 718, 131 N.Y.S.3d 894).

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., BARROS, CHRISTOPHER and ZAYAS, JJ., concur.