Opinion
1541 KA 16–01334
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Craig MOBAYED, Defendant–Appellant.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT–APPELLANT. CHRISTOPHER BOKELMAN, ACTING DISTRICT ATTORNEY, LYONS (TIMOTHY G. CHAPMAN OF COUNSEL), FOR RESPONDENT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT–APPELLANT.
CHRISTOPHER BOKELMAN, ACTING DISTRICT ATTORNEY, LYONS (TIMOTHY G. CHAPMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of robbery in the first degree ( Penal Law § 160.15[4] ). We note at the outset that defendant's purported waiver of the right to appeal is invalid. County Court failed to obtain a knowing and voluntary waiver of the right to appeal at the time of the plea (see People v. Brown, 148 A.D.3d 1562, 1562–1563, 48 N.Y.S.3d 865 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 86 N.E.3d 566 [2017] ; People v. Blackwell, 129 A.D.3d 1690, 1690, 12 N.Y.S.3d 425 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 38 N.E.3d 835 [2015] ). Moreover, even if it had occurred at the time of the plea, the inquiry made by the court when defendant purportedly waived his right to appeal after sentencing in the combined plea and sentencing proceeding was "insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Sanford, 138 A.D.3d 1435, 1435–1436, 30 N.Y.S.3d 440 [4th Dept. 2016] [internal quotation marks omitted] ). Defendant also signed a written waiver of the right to appeal at that time, but "[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it" ( People v. Bradshaw, 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; see Sanford, 138 A.D.3d at 1436, 30 N.Y.S.3d 440 ).
Although a valid waiver of the right to appeal would not preclude defendant's challenge to the voluntariness of his plea, defendant failed to preserve that challenge for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction (see Sanford, 138 A.D.3d at 1436, 30 N.Y.S.3d 440 ). In People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), however, the Court of Appeals carved out a narrow exception to the preservation requirement for the "rare case" in which "the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea," thereby imposing upon the trial court "a duty to inquire further to ensure that defendant's guilty plea is knowing and voluntary" ( id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). This case does not fall within that exception. Nothing defendant said during the plea colloquy itself raised the possibility that the affirmative defense under Penal Law § 160.15(4) was applicable (see People v. Vogt, 150 A.D.3d 1704, 1705, 54 N.Y.S.3d 259 [4th Dept. 2017] ; People v. Masterson, 57 A.D.3d 1443, 1443, 871 N.Y.S.2d 534 [4th Dept. 2008] ) and, contrary to defendant's contention, we conclude that the court had no duty to conduct an inquiry concerning the affirmative defense based upon comments made by defendant during the sentencing portion of the proceeding (see Vogt, 150 A.D.3d at 1705, 54 N.Y.S.3d 259 ; People v. Garbarini, 64 A.D.3d 1179, 1179, 882 N.Y.S.2d 785 [4th Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ; but see People v. Gresham, 151 A.D.3d 1175, 1177–1178 [3d Dept. 2017] ).
Finally, inasmuch as the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was sentenced as a second felony offender, they must be amended to reflect that he was sentenced as a second violent felony offender (see People v. Carducci, 143 A.D.3d 1260, 1263, 38 N.Y.S.3d 678 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.