PEOPLE v. BURNEY

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Angelic BURNEY, Defendant-Appellant.

Decided: June 24, 2003

BUCKLEY, P.J., NARDELLI, SULLIVAN and ROSENBERGER, JJ. Jonathan Zucker, for Respondent. Brian W. Stull, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered December 16, 1999, convicting defendant, upon her plea of guilty, of manslaughter in the first degree, and sentencing her to a term of 12 1/212 to 25 years, unanimously affirmed.

 Since defendant did not move to withdraw her plea or vacate the judgment of conviction, she has not preserved her challenge to the sufficiency of the plea allocution, and this case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5.   Were we to review this claim, we would reject it because every element of the crime, including intent, may be readily inferred from defendant's factual allocution (see People v. McGowen, 42 N.Y.2d 905, 397 N.Y.S.2d 993, 366 N.E.2d 1347).   Furthermore, as defendant pleaded guilty to a lesser crime than the one charged in the indictment, no factual basis for the plea was necessary (People v. Moore, 71 N.Y.2d 1002, 1006, 530 N.Y.S.2d 94, 525 N.E.2d 740;  People v. Clairborne, 29 N.Y.2d 950, 951, 329 N.Y.S.2d 580, 280 N.E.2d 366).   We also note that there is no evidence that defendant was mentally incompetent to plead guilty.

 Defendant also made a valid waiver of her right to appeal the denial of her suppression motion.   A court need not engage in “any particular litany” in order to find such a waiver (People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653).   Defendant here was offered two possible pleas:  a manslaughter plea requiring waiver of her right to appeal the suppression ruling, or a murder plea preserving her right to appeal.   Defendant discussed these offers with counsel, took several days to consider them and chose the manslaughter plea.   Her counsel informed the court of her decision, expressly articulating the waiver of her right to appeal the suppression issue.   In defendant's ensuing plea allocution, she made it clear that she had heard, understood and authorized the statements her attorney had just made.   Thus, the record, viewed as a whole, establishes that defendant waived her right to appeal from the denial of her suppression motion (see People v. Moissett, 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653, supra ).   Accordingly, defendant's challenge to the suppression ruling is foreclosed.

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