PEOPLE v. JONES (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Mark Caruso, J.), rendered October 12, 2022, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

Defendant, along with a codefendant, was charged in a 13–count indictment with various offenses arising from conduct that occurred from June 2019 to October 2019, including four counts of burglary in the second degree.  Defendant failed to appear for arraignment in March 2020, and a bench warrant was issued.  He was eventually arrested and was arraigned on the indictment on April 27, 2022.  Defendant thereafter moved to dismiss the indictment on, among other things, speedy trial grounds, and County Court granted a hearing on that issue.  At the commencement of the hearing, defendant considered a plea offer from the People and ultimately reached a plea agreement.  Defendant expressly waived the scheduled hearing and pleaded guilty to a reduced charge of attempted burglary in the second degree in satisfaction of the indictment and any uncharged burglaries committed during the time frame referenced in the indictment.  The plea agreement also required defendant to waive his right to appeal.  In accordance with the plea agreement, County Court sentenced defendant, as a second violent felony offender, to six years in prison, to be followed by five years of postrelease supervision.  Defendant appeals.

Initially, we agree with defendant that his appeal waiver is invalid.  The written waiver executed by defendant indicates that it “marks the end of [his] case” and precludes him from pursuing collateral relief “in any state or federal court.”  Although the written waiver and the oral colloquy both advise that certain appellate review survives, neither establish that claimant understood that some collateral relief survives the waiver.  Therefore, defendant's appeal waiver is not knowing, intelligent and voluntary (see People v. Nesbitt, 248 A.D.3d 1564, 1565, 253 N.Y.S.3d 425 [3d Dept 2026];  People v. Appiah, 218 A.D.3d 1060, 1061, 195 N.Y.S.3d 153 [3d Dept 2023], revd on different grounds 41 N.Y.3d 949, 207 N.Y.S.3d 37, 230 N.E.3d 1101 [2024] ).

As to defendant's speedy trial claims, the record reflects that the plea agreement was reached following negotiations that took place both before and at the outset of the hearing scheduled on those claims.  Defendant confirmed during the plea colloquy that he was giving up the right to a hearing on the speedy trial issue.  It is therefore evident from the record that defendant “knowingly and voluntarily abandoned the right to a hearing on the issue” (People v. Ketchmore, 183 A.D.3d 1014, 1015, 123 N.Y.S.3d 761 [3d Dept 2020] [internal quotation marks and citation omitted], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 391, 152 N.E.3d 1192 [2020] ).  “By waiving the hearing scheduled to assess whether an unjustifiable delay in commencing the prosecution had occurred, defendant precluded the development of a factual record sufficient to establish any merit to his claims” (id. [internal quotation marks, brackets and citations omitted] ).  Accordingly, “[a]ppellate review of ․ defendant's statutory and constitutional speedy trial claims is foreclosed” (People v. Gooden, 151 A.D.2d 773, 774, 542 N.Y.S.2d 757 [2d Dept 1989];  see People v. Ketchmore, 183 A.D.3d at 1015, 123 N.Y.S.3d 761).

Defendant's contention that his plea was involuntary has not been preserved for our review because he failed to make an appropriate postallocution motion (see People v. Clay, 245 A.D.3d 994, 995, 248 N.Y.S.3d 365 [3d Dept 2026], lv denied 45 N.Y.3d 935, 252 N.Y.S.3d 527, 277 N.E.3d 279 [2026];  People v. Lewis, 234 A.D.3d 1209, 1210, 225 N.Y.S.3d 779 [3d Dept 2025], lv denied 43 N.Y.3d 1009, 234 N.Y.S.3d 818, 261 N.E.3d 953 [2025] ).  We agree, however, with defendant that he made statements during the plea colloquy that called into question the voluntariness of his plea so as to trigger the exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Rogers, 155 A.D.3d 1188, 1188, 64 N.Y.S.3d 382 [3d Dept 2017] ).  The record reflects that County Court questioned defendant regarding those statements and that defendant assured the court that he wanted to accept the plea offer and proceed with the colloquy.  The court then engaged in a detailed colloquy that included discussion of the rights defendant was forfeiting by pleading guilty and defendant affirmed that he understood the terms and ramifications of the plea agreement, and he freely admitted that he had committed the crime of attempted burglary in the second degree.  The record further reflects that, at sentencing, defendant confirmed to the court that he did not wish to withdraw his plea and he then reallocuted to the crime.  In light of the foregoing, the court “made a sufficient inquiry to establish that the plea was knowingly and voluntarily entered” (People v. Vandyke, 232 A.D.3d 946, 947, 221 N.Y.S.3d 351 [3d Dept 2024] [internal quotation marks and citation omitted] );  (see People v. Greene, 195 A.D.3d 1317, 1318, 146 N.Y.S.3d 539 [3d Dept 2021] ).  Lastly, defendant's argument concerning allegedly exculpatory statements that he made to the Probation Department at his presentence interview is unpreserved in the absence of a motion to withdraw his plea (see People v. Rios, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2026 N.Y. Slip Op. 00963, *2, 2026 WL 466798 [2026] ).

ORDERED that the judgment is affirmed.

Mackey, J.

Clark, J.P., Pritzker, Ceresia and Corcoran, JJ., concur.