PEOPLE v. EBERT

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Kathryn EBERT, Appellant.

Decided: February 24, 2005

Before:  CARDONA, P.J., MERCURE, ROSE, LAHTINEN and KANE, JJ. Matthew B. Tully, Albany, for appellant. Terry J. Wilhelm, District Attorney, Catskill (Charles M. Tailleur of counsel), for respondent.

Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered December 3, 2002, convicting defendant upon her plea of guilty of the crime of criminal contempt in the first degree.

Defendant was charged in a one-count indictment with criminal contempt in the first degree for violating an order of protection on February 13, 2002 and February 16, 2002.   Defendant entered an Alford plea to the charged crime, waived her right to appeal and was sentenced in accordance with the plea agreement to participation in an in-house treatment program and five years' probation.   Defendant now appeals.

 Defendant's sole contention on appeal is that County Court erred in accepting her Alford plea inasmuch as there is insufficient evidence of defendant's actual guilt.   Although defendant's claim survives the waiver of the right to appeal “to the extent that it involves the voluntariness of the plea” itself (People v. Sandlin, 282 A.D.2d 833, 833, 722 N.Y.S.2d 921 [2001], lv. denied 96 N.Y.2d 834, 729 N.Y.S.2d 455, 754 N.E.2d 215 [2001];  see People v. Berry, 285 A.D.2d 672, 727 N.Y.S.2d 353 [2001] ), defendant's challenge to the validity of the plea is nevertheless unpreserved for our review due to her failure to move to withdraw the plea or vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Grier, 11 A.D.3d 816, 783 N.Y.S.2d 146 [2004];  People v. Perry, 4 A.D.3d 618, 772 N.Y.S.2d 383 [2004], lv. denied 2 N.Y.3d 804, 781 N.Y.S.2d 303, 814 N.E.2d 475 [2004] ).   In any event, were we to reach the merits, we would find that the Alford plea represented an intelligent and voluntary choice on behalf of defendant given the alternatives and that the information considered by County Court, including the grand jury minutes, provide strong record evidence of defendant's guilt (see People v. Stewart, 307 A.D.2d 533, 534, 763 N.Y.S.2d 688 [2003] ).

ORDERED that the judgment is affirmed.

Copied to clipboard