The People, Respondent,v.Raymond Leach, Appellant.BriefN.Y.January 12, 2016Court ofAppeals No: To Be Argued By: APL -2015-00040 ELIZABETH L. SCHULZ 15 MINuTEs REQUESTED COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - RAYMOND LEAcH Appellant. BRIEF FOR THE RESPONDENT DAVID M. H00vLER DISTRICT ATTORNEY FOR ORANGE COUNTY ATTORNEY FOR RESPONDENT 18 SEWARD AVENUE MIDDLET0wN, NEW YoRK 10940 TEL. 845-615-3640 EUzABETH L. SCHULZ ASSISTANT DISTRICT ATTORNEY ANDREW R. KAsS ExECuTIVE ASSISTANT DISTRICT ATTORNEY OF COUNSEL May 21, 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 POINTI 13 THE DEFENDANT’S WAIVER OF RIGHT TO APPEAL WAS PROPERLY EXECUTED AND WAS OTHERWISE KNOWING, VOLUNTARY, AND INTELLIGENT POINT II 23 THE DEFENDANT’S PLEA SHOULD BE UPHELD ON APPEAL CONCLUSION 34 TABLE OF AUTHORITIES State Cases: Blackstock v Price, 51 AD3d 914 [2d Dept., [2008] 26 Hallock v State of New York, 64 NY2d 224, 230 [1984] 26 Matter of Hecht, 24 AD2d 1001 [2d Dept., 1965] 26 Matter of Yao, 231 AD2d 346 [ist Dept., 1997] 26 People v Adio, iii AD3d 757 [2d Dept., 2013] 24 People v Arnone, 19 AD3d 198 [ist Dept., 2005] 26, 32 People v Basnight, 46 AD3d 697; [2d Dept., 2007] 31, 33 PeoplevBradshaw, 18NY3d257 [2011] 15,22 People v Bouton, 107 AD3d 1035 [3d Dept., 2013] 19 People v Cahill, 2 NY3d 14, 141 [2003] 14 People v Callahan, 80 NY2d 273, 283 [1992] 20 People v Chapple, 269 AD2d 621 [3d Dept., 2000] 28 People v Claudio, 64 NY2d 858 [1985] 24 People v Darby, 304 AD2d 672 [2d Dept., 2003] 14 People v Dioguardi, 8 NY2d 260, 268-274 [1960] 26, 32 People v DiRaffaele, 55 NY3d 234 [1982] 31, 33 People v Finn, 56 AD3d 490 [2’ Dept., 2008] 18 People v Fiurnefreddo, 82 NY2d 536, 543 [1993] 30 —11— PeoplevFludd, 33 AD3d 1124 [3d Dept., 2006) .15 People v Gil, 109 AD3d 484 [2d Dept., 2013) 19 Peoplev Guy, 95 AD3d 1139 [2d., Dept., 2012] 24,31 People v Hansen, 95 NY2d 227, 230 [2000] 17, 31 People v Henson, 96 AD3d 1076 [2d Dept., 2012 16 People v Harris, 98 NY2d 452, 457 [2002) 14 People v Harris, 61 NY2d 9 [1983) 29 People v Hernandez, 96 AD3d 783 [2d Dept., 2012] 15 People v Hernandez, 19 AD3d 706 [2d Dept., 2005] 18 People v Holman, 89 NY2d 876 [1996] 19 People v Jones, 44 NY2d 76 [1978) 33 People v Lamm, 292 NY 224 [1944) 26 People v Lawrence, 273 AD2d 805 [4tl Dept., 2000]) 33 People v Leach, 115 AD3d 677 [2 Dept., 2014] 5, 18, 21 People v Leach, 24 NY3d 1220 [2015) 6 People v Levin, 57 NY2d 1008 [1982] 31, 34 People v Lopez, 71 NY2d 662, 665-666 [1988] 15, 16,24,25 People v Lopez, 6 NY3d 248 [2006] 15, 17, 18, 20, 21, 28 People v Louree, 8 NY3d 541 [2007] 16 People v Mackie, 54 AD3d 651 [1st Dept., 2005) 28 —111— People v Magnano, 77 NY2d 941 [1991].16 People v Moissett, 76 NY2D 909 [1990] 19, 21 People v Morales, 13 AD3d 284 [1st Dept., 2004] 23 People v Munoz, 136 AD2d 479 [1st Dept., 1988] 29, 32 People v Mydosh, 27 AD3d 580 [2d Dept., 2006] 18 People v Nash, 38 AD3d 684 [2d Dept. 2007] 31 People v Rarnos, 7 NY3d 737, 738 [2006] 21,22 People v Rosseter, 62 AD3d 1093 [3d Dept., 2009] 31 People v Russillo, 27 AD3d 672 [2d Dept., 2006] 14 People v Rytel, 284 NY 242, 246 [1940]) 14 People v Panettiere, 121 AD3d 920 [2d Dept., 2014] 24, 29 People v Parara, 46 AD3d 936 [3d Dept., 2007] 28, 29 People v Pascale, 48 NY2d 997 [1980] 24 People v Perez, 82 AD3d 1451 [3d Dept., 2011] 28 People v Plunkett, 19 NY3d 400, 405-406 [2012] 31,32 People v Taylor, 65 NY2d 1, 5 [1985] 17, 31,33 People v Thomas, 53 NY2d 338, 340 [1981] 31,33 Peoplev Thompson, 6ONY2d 513, 521 [1983] 14 People v Toxey, 86 NY2d 725 [1995]) 16, 25 People v Santiago, 22 NY3d 900 [2013] 16 -iv- People v Sciolevette, 80 AD3d 630 [2d Dept., 20111.29 People v Seaberg, 74 NY2d 1[1989] 18, 19,22 People v Seeber, 4 NY3d 780 [2005] 30 People v Smith, 112 AD3d 1232 [3d Dept., 2013] 24 People v Swindell, 72 AD3d 1340, 1341 [3d Dept., 2010] 28 People v Udzinski, 146 AD2d 245 [2d Dept., 1991] 17 People v Ward, 25 AD3d 727 [2d Dept., 2006] 18 People v Washington, 262 AD2d 868 [3d Dept., 1999] 28 Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801[2003] 15 Federal Cases: United States v Maher, 108 F3d 1513, 1530 [2d Cir. 1997] 29 Statutes and Other Authorities: CPL 470.05 16 CPL 2 10.20(6)) 5 Penal Law §110.00 1, 9 Penal Law §135.60(5) 4 Penal Law §135.60(9) 4 Penal Law 155.05(2)(e)(v) 1, 4 Penal Law §155.05(2)(e)(ix)) 4 Penal Law §155.35 1,4,9 COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Court of Appeals APL No. 20 15-00040 RAYMOND LEACH, Defendant-Appellant. x BRIEF FOR THE RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Piggott, Jr., the defendant appeals from a March 5, 2014 decision and order of the Appellate Division, Second Judicial Department. That decision affirmed ajudgment of the Orange County Court (Berry, Jj, which convicted defendant, upon his plea of guilty, of attempted grand larceny in the third degree (Penal Law §110.00/155.35)(1) and §155.05(2)(e)(v)) and imposed a sentence of one year in the Orange County Jail. The defendant has served his sentence. INTRODUCTION AND PROCEDURAL HISTORY On September 10, 2010, defendant contacted the Greater Hudson Valley Family Health Center (“the Health Center”) at their administrative offices, located in the Town of Cornwall, Orange County, New York, and 1 told employees he had the medical records of three patients that he claimed to have found. He asked for money and letters of apology as a condition of returning the records. The Health Center immediately contacted the Town of Cornwall Police Department, who arranged for the CEO of the Health Center to make a recorded phone call to defendant. The defendant told the CEO on the phone that he had the records and indicated that the records contained sensitive medical information. He asked for contact information of the patients whose medical records he had found. Defendant told the CEO that he was going to prepare lawsuits for these persons if the Health Center didn’t do what he wanted them to do and that it would cost the Health Center millions of dollars to defend these lawsuits. He also said that it would be an embarrassment if the records were released to the media. He then told the CEO that the situation could be resolved by writing letters of apology to the patients and paying them money, and by paying him $10,000, and suggested that the Health Center would not have to worry about a lawsuit or the incident being reported to the media. He also directed the CEO to draft a “stipulation” outlining their so-called agreement. In response, the CEO arranged for a meeting with the defendant at 10 a.m. on September ii, 2010. 2 The next morning, the Chief of the Town of Cornwall Police Department and a Town of Cornwall Police Officer met with the CEO at the Health Center office in the Town of Cornwall in anticipation of the meeting. The police arranged for a video and audio recording of the meeting. The Chief also posed as the financial officer who would write the check to the defendant. The defendant then arrived at the Cornwall office, where he met with the CEO. He introduced himself as Raymond Leach, attorney pro se and started talking about a Supreme court case. He also reiterated that it would have been an embarrassment for the records to be sent to television stations and that it would also result in costly litigation. He also had the CEO amend the stipulation to state “no discussion with the underlying fact with any person or agencies” and they both signed the letter. The CEO then brought the Chief into the office where she was speaking to defendant and introduced him as the CFO. The defendant provided his name and address and received a check for $10,000, signed by the CEO and by the Chief of Police posing as the CFO of the Health Center. The Chief of Police stamped the stipulation with the Health Center’s corporate seal and gave the defendant a copy. The Chief, still posing as the CFO, escorted defendant out of the building. Once outside, he told him he had forgotten something and asked the defendant to step back into the 3 building. When defendant returned to the building, he was placed under arrest. By Orange County Indictment 2010-548, the defendant was charged with two counts of Grand Larceny in the Third Degree (Penal Law §155.35, 155.05(2)(e)(v), (e)(ix)), two counts of Grand Larceny in the Fourth Degree (Penal Law §155.30(6), 155.05(2)(e)(v), (2)(e)(ix)) and two counts of Coercion in the Second Degree (Penal Law §135.60(5), (9)). Upon its review of the grand jury minutes, the County Court concluded that the check that was presented to defendant was not a negotiable instrument and reduced counts one and two of the indictment to Attempted Grand Larceny in the Third Degree, a class E felony. On June 29, 2011, the defendant appeared with counsel before the Orange County Court (Berry, J.) and entered a plea of guilty to count one of the indictment, Attempted Grand Larceny in the Third Degree (Penal Law §1 10.00/155.35; 155.05(2)(e)(v)). On July 27, 2011, the defendant was sentenced as noted above. On appeal, in a main brief, defendant claimed that he was incompetent and therefore could not enter a valid guilty plea and that his sentence was excessive. He also challenged the validity of his waiver of his right to appeal. In a supplemental brief, defendant claimed that his plea to the 4 reduced charge under count one, was invalid because of the People’s failure to comply with CPL 210.20(6)), that he was deprived of effective assistance of counsel, and that the People committed an alleged Brady violation. In a decision and order dated March 5, 2014, the Appellate Division, Second Department unanimously affirmed defendant’s judgment of conviction (People v Leach, 115 AD3d 677 [2d Dept., 20141). Tn affirming the defendant’s conviction, the Court found that defendant’s waiver of right to appeal was knowing, voluntary, and intelligent and the valid waiver precluded review of his excessive sentence claim. The Court also found that defendant’s challenge to the voluntariness of his plea on the ground that he was mentally incompetent was belied by the record. The Appellate Division noted that the record showed that defendant had been found competent at his most recent psychological examination, and that defense counsel did not want to controvert the evaluation. It also noted that defendant’s responses during the plea proceedings were appropriate and did not indicate that he was incapacitated. Additionally, the Appellate Division rejected defendant’s claims that were raised in his pro se supplemental brief. In particular, the Appellate Division concluded that at the time of his plea, the reduced charge remained viable following the expiration of the statutory thirty day period, that defendant’s ineffective assistance of counsel claim was premised in part on matters outside of the record and therefore was not reviewable on direct appeal. Finally, the Appellate Division concluded that defendant’s valid waiver of his right to appeal precluded review of his excessive sentence claim, and that his Brady claim was forfeited by his guilty plea. Defendant sought leave to appeal to this Court on the issues raised in the Appellate Division. During the first of two leave conferences, Judge Piggott sua sponte questioned whether defendant’s conduct was even criminal and on February 3, 2015, granted leave to appeal (People v Leach, 24 NY3d 1220 [2015])). On appeal to this Court, the defendant challenges the validity of his waiver of his right to appeal and the voluntariness of his guilty plea, arguing for the first time in any proceeding that his statements negated an express element and that the admitted conduct did not constitute a crime. For reasons more fully discussed herein, the decision and order of the Appellate Division, Second Department should be affirmed in its entirety. 6 STATEMENT OF FACTS THE PLEA PROCEEDINGS On June 29, 2011, the defendant appeared in the Orange County Court (Berry, J.) with his attorney, Gary Abramson, Esq. The defendant was sworn in and examined by the Court. He stated that he was almost 67 years old. He could read, write, and understand the English language and that Gary Abramson was his attorney. The defendant also indicated that he had been able to have a good discussion with his attorney earlier that day (S.A: 2).! Defense counsel then indicated that he had been informed of the results of the defendant’s most recent 730 exam, which indicated that the defendant was competent to stand trial. Both defense counsel and the People advised the Court that neither party wished to controvert those findings. Defense counsel also indicated that the defendant appeared to be in very good mental health. Defense counsel indicated that defendant was more cooperative and understood what was being asked of him (S.A: 2-3). The People then indicated that the defendant would be pleading guilty to the reduced crime of Attempted Grand Larceny in the Third Degree, an “E” felony, under count one. The People asked that the defendant be sentenced to one to three years of incarceration. The Court indicated, in l Numbers preceded by “S.A.” refer to pages of the Respondent’s Supplemental Appendix. 7 turn, that it would either sentence the defendant to one year in the Orange County Jail or give the defendant a split sentence of time served and four and one-half years of probation. The Court also advised that it would make its final determination based on the pre-sentence investigation, and further indicated that in order to achieve the benefit of that bargain, defendant would have to cooperate with the probation department in being interviewed, and return for sentencing or avoid arrest and violations of the law. The defendant would also be required to waive and give up his right to appeal, as an express condition of the negotiated plea. The defendant then indicated that he wished to plead guilty. The defendant was also admonished that if he did not keep his plea promises, he could receive a maximum sentence of one and one-third to four years of incarceration (S.A: 3-5, 8-10). The Court then reviewed with the defendant the various rights he would give up by pleading guilty. In response to the Court’s questioning, the defendant indicated that he understood that he would be giving up his right to a trial, to testifS’, to cross-examine the People’s witnesses and to present his own defense, as well as his privilege against self-incrimination. The defendant also indicated that he had a good, clear brain and that he was not on any medication (S.A: 5-8). The defendant also indicated that he 8 understood that a guilty plea had the same force and effect as a conviction after trial (S.A: 10). The defendant then pleaded guilty to the crime of Attempted Grand Larceny in the Third Degree (Penal Law §110.00/155.35(1)) and indicated that he was pleading guilty because he was in fact, guilty. The defendant further stated that no one had threatened, forced, or coerced him into pleading guilty and that he was not on any drugs, alcohol, or medication that would prevent him from pleading guilty, and that he had a clear head and knew what he was doing. The defendant also indicated that he had had a full chance to discuss his case, including his guilty plea and waiver of right to appeal and any possible defenses with his attorney, and that he was satisfied with his legal advice (S.A: 10-12). The defendant was also advised that he was pleading guilty to a felony and that if he was convicted of another felony within the next ten years, he could receive an enhanced sentence as a second felony offender. The defendant then admitted that on or about and between September 10, 2010 and September 11, 2010 that he attempted to steal property valued in excess of $3, 000, namely monies from the Greater Hudson Valley Family Health Center and that he did it by means of extorting property. The defendant also admitted that the crime occurred at 10:30 a.m. at the Health Center in the 9 Town of Cornwall, Orange County, New York, and further admitted that he had located medical records in the parking lot and made the Health Center give him a check for $10,000 as a stipulation of settlement to avoid going to court. The defendant also admitted that by demanding that he be paid for those records, that he was exhorting the Health Center. Based on the allocution, the Court found the defendant’s plea to be acceptable (S.A: 12- 16). Before the proceedings were adjourned, defense counsel stated that he believed that his client understood that he broke the law by exhorting money, but noted that he did it for altruistic and not selfish reasons. The Court then explained to the defendant that there was no “Robin Hood” defense and that whatever his motive, his actions were against the law. Defendant raised no further objection and at no time moved to withdraw his guilty plea or took issue with either his attorney’s statements or the Court’s response (S.A.: 16-18). SENTENCING PROCEEDINGS On July 27, 2011, the defendant appeared again before the County Court (Berry, J.) with his attorney for sentencing (S.A.: 20). The Court confirmed that there was no legal reason why the defendant could not be sentenced (S.A.: 21). The People then addressed the Court. They asked that 10 the Court sentence defendant to one to three years of incarceration in state prison. They also asked for orders of protection for the three victims (S.A.: 21). In response, defense counsel indicated that he was aware that the Probation Department had recommended incarceration. Counsel then stated that although the defendant needed to be punished, he had not had an easy time of it. He was a 67 year old man who had spent a year in jail and psychiatric hospitals. Counsel also indicated that the defendant did not need community supervision. Instead, he argued that defendant needed to be surrounded by loved ones who could support him. The defendant did not address the Court (S.A.: 22-23). The Court then addressed the defendant. Although the Court believed that defendant was not capable of carrying out such threats, it indicated that defendant’s behavior frightened people and he could not go out and commit such acts. The Court then acknowledged that between the County Jail and the mental health facility, that defendant had served a substantial period of time, which was the reason why the Court agreed to limit his sentence to one year in the County Jail. The defendant was also instructed that he was not to have independent contact with the victims. If there were separate legal proceedings he could only communicate to the parties through counsel. The 11 defendant was also ordered to pay a crime victim’s fee, DNA fee and mandatory surcharge. The defendant was then read his right to appeal (S.A: 23-26). Following the reading of his appellate rights, the defendant waived his right to appeal his conviction and sentence. He reviewed a written waiver of his appellate rights with his attorney and then signed it. Before accepting the defendant’s waiver, the Court confirmed that the defendant had not been threatened forced, or coerced into signing the waiver. The defendant also indicated that he had not had any substances that would cause him not to think clearly and that he had a clear head and that he knew what he was doing. In response to the Court’s questioning, the defendant also indicated that he was waiving his right to appeal all aspects of his case, including his sentence. Based on the defendant’s allocution, the Court accepted his waiver as knowing, voluntary, and intelligent (S.A.: 26-29). The Court also reminded the defendant that if he violated the order of protection, he could be prosecuted for Criminal Contempt in the Second Degree, a class E felony, punishable by one and one-third to four years of incarceration. The defendant could also be adjudicated as a second felony offender and receive enhanced penalties. The proceedings were then concluded (S.A.: 28-29). 12 POINT I THE DEFENDANT’S WAIVER OF RIGHT TO APPEAL WAS PROPERLY EXECUTED AND WAS OTHERWISE KNOWING, VOLUNTARY, AND INTELLIGENT (In response to Point I of the Defendant’s Brief). At the plea proceedings, the trial court specifically advised defendant that he would be required to waive his right to appeal in order to avail himself of the negotiated disposition. Following an off-the-record discussion with his attorney, defendant indicated that he understood the promises that he made to the Court, including his promise to waive his right to appeal. Additionally, defendant also indicated that he had a full opportunity to discuss the matter with his attorney, including the facts, his plea of guilty and that charge that he was pleading guilty to, and his waiver of right to appeal and sentences and possible defenses. Later, at sentencing, defendant executed the waiver of right to appeal and the waiver was accepted after the trial court conducted a thorough inquiry into defendant’s understanding of his rights and decision to waive his right to appeal. The defendant now argues on appeal that the postponement of the execution of the waiver until sentence rendered the waiver invalid. In essence, defendant contends that the Court’s “bare bones” reference to the waiver at the time of the plea was insufficient. Defendant’s challenge to the waiver should be rejected in its entirety. 13 Preliminarily, defendant’s continued challenge to the validity of his waiver of right to appeal in this Court is gratuitous. Defendant concedes that his one-year sentence has expired, a circumstance that bars any further reduction of his sentence by the Appellate Division irrespective of the waiver of his right to appeal (People v Russillo, 27 AD3d 672 [2d Dept., 2006]; People v Darby, 304 AD2d 672 [2d Dept., 2003]). Additionally, as reflected in the Appellate Division’s decision and order, the defendant’s waiver only barred consideration of his excessive sentence claim, a claim that cannot be reached by this Court (People v Thompson, 60 NY2d 513, 521 [1983]; People v Rytel, 284 NY 242, 246 [1940]). In contrast, defendant’s challenge to the voluntariness of his plea survives his waiver of right to appeal. Moreover, even assuming for the sake of argument that the waiver were held to be invalid, an invalid waiver alone does not undermine the voluntariness of a guilty plea. Thus, defendant’s arguments that address the validity of his waiver of right to appeal are all but academic, and any decision would provide only an advisory opinion for which no relief can be granted. In fact, the Court of Appeals is constitutionally barred from issuing advisory opinions (People v Harris, 98 NY2d 452, 457 [2002]; People v Cahill, 2 NY3d 14, 141 [2003j(Read, J., concurring in part and dissenting in part); Saratoga County Chamber of 14 Commerce, Inc. v Pataki, 100 NY2d 801, 810-811 [2003]). Accordingly, this Court should reject defendants’ challenge to his waiver for these reasons alone. In any event, defendant’s procedural challenge is unpreserved for appeal. Defendant did not object to the trial court’s procedure of having him execute the written waiver at the time of sentencing at all, much less on the specific grounds now raised on direct appeal. Nor did he seek to withdraw his plea or otherwise refuse to execute the waiver. Thus, his failure to raise a timely objection to the trial court’s practice of executing the appellate waiver at sentence renders his current challenge to the waiver’s validity unpreserved for appeal (see e.g. People v Lopez, 71 NY2d 662, 665-666 [19881). To be sure, while case law supports the idea that the validity of a defendant’s waiver of his right to appeal can be raised on direct appeal when the error is evident from the existing record (see People v Lopez, 6 NY3d 248 [2006]; People v Hernandez, 96 AD3d 783 [2d Dept., 2012]; People v Bradshaw, 18 NY3d 257 [2011]), it has also been held that a defendant’s challenge to the knowing and voluntary nature of the waiver is subject to preservation (People v Fludd, 33 AD3d 1124 [3d Dept., 2006]). 15 Importantly, even if certain challenges are not subject to preservation, defendant does not specifically challenge the facial sufficiency of his waiver or otherwise claim that the trial court’s inquiry that was conducted at sentencing was deficient. Rather, he takes issue with the execution of the waiver at the time of sentence as opposed to the time of the plea proceedings. Existing case law and public policy support the notion that defendant’s particular challenge concerning the timing of the waiver should be subject to the ordinary rules of preservation for several reasons. First, except in the rare instance where a plea allocution casts significant doubt on a defendant’s guilt, negates an element, or calls into question the voluntariness of the plea, a defendant’s challenge to the voluntariness of a plea is subject to preservation (see People v Lopez, supra, at 666; People v Toxey, 86 NY2d 725 [1995]). The only other exception exists with respect to a trial court’s failure to inform a defendant of the mandatory period of post-release supervision because the error is evident from the record (see People v Louree, 8 NY3d 541 [2007]). In contrast, all other claims, including challenges to the sufficiency or the voluntariness of a plea allocution are subject to preservation (see People v Henson, 96 AD3d 1076 [2d Dept., 2012; see e.g. People v Magnano, 77 NY2d 941 [1991]; see generally People v Santiago, 22 NY3d 900 [2013]). 16 Second, application of the preservation rule affords the parties and the court the opportunity to address the perceived error or deficiencies at a time when the particular concerns can be responded to and if necessary corrected (see People v Udzinski, 146 AD2d 245 [2d Dept., 19911). Moreover, as reflected in the defendant’s case, the trial court’s willingness to consider lesser sentences was conditioned to defendant’s agreement to waive his right to appeal. Likewise, if a defendant subsequently refuses to accept the previously agreed upon waiver, then the People, too, should not be bound by the negotiated sentencing recommendation. In short, defendant should not be permitted to benefit from his silence by now obtaining appellate review of claims that he specifically agreed to waive (see CPL 470.05(2); see also People v Lopez, 6 NY3d, at 255 [1989], holding that “an appeal waiver made as a condition of a plea arrangement facilitates the desirable objective of prompt, effective resolution of criminal litigation”). After all, a guilty plea is intended to mark the end of a criminal proceeding and not serve as the gateway to further litigation (see People v Hansen, 95 NY2d 227, 230 [2000); People v Taylor, 65 NY2d 1, 5 [1985)). Consequently, it is one thing to raise a facial sufficiency challenge to a waiver where the error is evident from the record as opposed to the purely procedural claim that defendant attempts to raise in this appeal. 17 In any event, defendant’s challenge to the timing of the execution of the waiver is without merit. First, because defendant was specifically advised at the time that he entered his guilty plea that he would be required to waive his right to appeal at sentencing (S.A.: 9), the fact that defendant did not execute his written waiver until after the trial court pronounced his sentence is legally irrelevant. Indeed, the execution of the waiver at sentence simply confirmed defendant’s previously communicated intent to waive his right to appeal (People v Lopez, supra; People v Seaberg, 74 NY2d 1, 10 [1989]). Furthermore, because the appellate waiver is separate and distinct from the other rights that are automatically extinguished by virtue of a guilty plea, the particular practice that was followed by the trial court avoided any conflation between the waiver of right to appeal with the other rights automatically forfeited by the defendant’s plea (People v Lopez, 6 NY3d, at 257). In fact, in having defendant execute the waiver at sentencing, the Court followed its established practice that had been routinely upheld over a number of years (People v Leach, 115 AD3d 677 [2’ Dept., 2014]; see e.g.: People v Finn, 56 AD3d 490 [2’ Dept., 2008]; People v Mydosh, 27 AD3d 580 [2d Dept., 2006]; People v Ward, 25 AD3d 727 [2d Dept., 2006]; People v Hemandez, 19 AD3d 706 [2d Dept., 2005]). 18 Although defendant now claims to be shocked by the practice followed in this case, in addition to this particular judge’s practice of having defendants execute their waiver at sentencing, appellate courts, including this Court, have upheld a similar practice in other contexts. A defendant, as a condition to a negotiated sentence may also waive his right to appeal his conviction and sentence post-trial verdict (People v Seaberg, 74 NY2d at 1; People v Holman, 89 NY2d 876 [19961). Given that reality, there is no true distinction between agreeing to and executing a waiver of right to appeal at sentencing post-verdict and executing such a waiver at sentencing post- guilty plea. Similarly, just as the fact that the advisement of the right to take an appeal does not operate to vitiate a defendant’s valid waiver of his right to appeal (see People v Moissett, 76 NY2d 909), it is also proper to have the defendant execute the written waiver at sentencing. In other words, the timing of the execution does not affect the voluntariness of an otherwise valid waiver of a defendant’s right to appeal his conviction and sentence. To be sure, some courts have found that waivers that were executed at sentencing were invalid (see People v Bouton, 107 AD3d 1035 [3d Dept., 2013]; People v Gil, 109 AD3d 484 [2d Dept., 2013]). However, Bouton was decided on the perceived lack of comprehension of the waiver, and Gil was silent on the issue. Moreover, neither intermediate appellate court fully 19 explained why a waiver of appellate rights must be executed at the time of the plea in order to be valid. In the absence of such an explanation, the Court should decline to adopt those decisions as governing law, and, in particular, in defendant’s case where the validity of his waiver of right to appeal is largely irrelevant to his challenge to the voluntariness of his plea. Furthermore, the procedures that were followed demonstrate that the waiver was valid. In addition to the fact that the court confirmed at the time of the plea that defendant understood that he would be required to waive his right to appeal, at sentencing, the court confirmed that defendant had fully reviewed the proposed written waiver with his attorney, that he fully understood the waiver, and that no one had threatened, coerced or forced him to sign the waiver. The defendant also indicated that he understood that the waiver signified that he was giving up his right to appeal all aspects of his case, including his sentence (S.A.: 27-29). The Court also did not conflate the waiver with the other rights automatically forfeited by pleading guilty (People v Lopez, 6 NY3d, at 257), and it did not rely on the written waiver in the absence of a proper colloquy on the record (People v Callahan, 80 NY2d 273, 283 [1992]). If there was any ambiguity in the Court’s explanation of the waiver, it was cured by the detailed, written waiver executed by defendant at sentence and in the presence of counsel, which 20 explained the appellate process and the appellate rights subject to the waiver and by the fact that the court conducted a thorough inquiry with respect to the waiver (S.A.: 34; see also People v Ramos, 7 NY3d 737, 738 [2006]). Accordingly, defendant fails to show how the court’s practice of having him execute the waiver at sentencing fails to comport with the requirements of a valid waiver of the right to appeal (see People v Moissett, supra; People v Ramos, supra; People v Lopez, 6 NY3d at 248). Finally, insofar as defendant claims that his fragile mental state further signifies the trial court’s error in executing the waiver at sentence, it should be noted that this aspect of defendant’s argument is not properly before this Court. Not only does defendant abandon his claim in the Appellate Division that he was incompetent, but the claim was rejected by the intermediate appellate court (People v Leach, 115 AD3d at 678). Common sense dictates that if defendant was competent to enter a guilty plea, in the absence of any evidence regarding a change in defendant’s mental state or condition between the time of plea and sentencing, he was equally competent to understand the waiver of his right to appeal. In any event, defendant’s statements under oath at the time of the plea and sentence, which demonstrated that he knew what was happening and was able to answer the court’s questions reasonably and appropriately, 21 conclusively established that his prior mental health issues did not stand in the way of either his plea or his waiver of right to appeal (Id.; see also People v Ramos, supra; compare People v Bradshaw (18 NY3d at 267 (declining to uphold validity of appellate waiver in view of defendant’s failure to orally confirm that he grasped the concept and nature of rights being waived)). Finally, in view of the fact that the defendant faced a maximum period of one and one-third to four years of incarceration if he were convicted after trial, his decisions to plead guilty and to waive his right to appeal were eminently reasonable. These same circumstances also demonstrate that he knowingly, voluntarily, and intelligently waived his right to appeal his conviction and sentence (People v Seaberg, supra). In sum, defendant’s belated challenge to the time of the execution of his waiver of his right to appeal is unpreserved for appeal, and, in any event, is without merit. Thus, there is no basis to reverse this aspect of the Appellate Division’s decision and order. 22 POINT II THE DEFENDANT’S PLEA SHOULD BE UPHELD ON APPEAL (In response to Point II of the Defendant’s Brief). Defendant also argues that his plea of guilty is not only involuntary but fails to make out the elements of the crime for which he was convicted. Rather than committing a larceny by extortion, defendant now claims for the first time in any proceeding that he negotiated a “good faith” stipulation of settlement for the return of the lost medical records and suggests that the Health Center attempted to entrap him in order to avoid disclosure of a potential HIPAA violation. Additionally, defendant also claims that his very responses negated his intent to steal. As shown below, defendant’s current challenge, in which he all but abandons the claims that he raised in the Appellate Division, is both unpreserved for appeal and baseless. In fact, large portions of defendant’s attack on the validity of his guilty plea are premised on nothing more than pure fantasy as well as a gross misrepresentation of the facts in this case (compare People v Morales, 13 AD3d 284 [1st Dept., 2004 (observing that defendant’s brief is less than candid with respect to the record before the sentencing court)). 23 As a threshold matter, defendant’s belated challenge to his guilty plea on the grounds that his admitted conduct did not constitute a crime is unpreserved for appeal. As a general rule, a defendant may not challenge on appeal either the sufficiency of the allocution or the voluntariness of the plea unless he has moved to withdraw his plea prior to sentence or moved to vacate his conviction post-judgment (People v Claudio, 64 NY2d 858 [1985]; People v Pascale, 48 NY2d 997 [1980]; People v Lopez, 71 NY2d 662),2 Interpreting what this Court said in Lopez, virtually every appellate court that has addressed like claims has applied the rule of preservation (see e.g. People v Panettiere, 121 AD3d 920 [2d Dept., 2014); People v Smith, 112 AD3d 1232 [3d Dept., 2013]; People v Adio, 111 AD3d 757 [2d Dept., 2013]; People v Guy, 95 AD3d 1139 {2d Dept., 2012]). Defendant’s belated challenge to the sufficiency of the plea allocution presents no reason to depart from the ordinary rules of preservation. Here, defendant concedes that he made no attempts to preserve these issues for further review by way of a motion to withdraw his plea (Defendant’s brieL at 16). More importantly, the rare exception to preservation is not present here since there is nothing in either the plea 2 The defendant later moved to vacate the judgment of conviction but not until after his conviction had been affirmed by the Appellate Division. His motion was denied by the Orange County Court (Berry, J.) in a decision and order dated October 1, 2014. More recently the Appellate Division dismissed defendant’s appeal (People v Leach, 2014 NY Slip Op. 92080(U) [Dec. 8, 20141). 24 allocution or the record that casts any doubt on defendant’s guilt or the actual voluntariness of the plea. In recognition of that reality, defendant now claims for the first time in any court that his allocution somehow negated his guilt and therefore his challenge is not subject to preservation. This argument should also be rejected. As recognized by this Court, a limited exception to the preservation rule exists when a defendant’s factual allocution negates an essential element of the charged crime and thereby casts doubt on defendant’s guilt (see People v Lopez, 71 NY2d at 666; People v Toxey, 86 NY2d at 726). However, contrary to defendant’s contention, his challenge did not come within the narrow exception that would permit review despite his failure to move to withdraw his plea. In fact defendant’s challenge fails for two very specific reasons. In the first instance, the record does not support defendant’s claim that his allocution negated an essential element of the crime of attempted grand larceny in the third degree. Defendant not only advised the trial court that he was pleading guilty because he was, in fact, guilty of the charged crime, but as part of his allocution he expressly admitted that between September 10, 2010 and September 11, 2010, he attempted to steal more than $3,000.00 in United States currency from the Greater Hudson Valley Family Health Center and that he attempted to accomplish that act by means of extorting 25 property. He further admitted that he provided copies of the medical records that he claimed to have found and that he received a check that was made out in the amount of $10,000.00, and he also admitted that the records in question were not his medical records. As such, defendant’s admitted conduct was plainly criminal in nature. There was no valid agreement or stipulation of settlement as defendant purports to have existed (see generally Hallock v State of New York, 64 NY2d 224, 230 [1984]; Blackstock v Price, 51 AD3d 914 [2d Dept., [2008]; Matter of Hecht, 24 AD2d 1001 [2d Dept., 1965]; see also People v Lamm, 292 NY 224 [1944]; People v Dioguardi, 8 NY2d 260, 268-274 [1960]; People v Arnone, 19 AD3d 198 [1st Dept., 2005]). Also, although he was not an attorney, attorneys who have engaged in similar conduct have faced both criminal charges and professional discipline (see Matter of Yao, 231 AD2d 346 [ist Dept., 1997]). Nevertheless, defendant points to a singular instance during the proceedings in which the court asked him if it was fair to say that he should have just returned the records to the Health Center instead of demanding that they pay him money in order to avoid being taken to court (S.A. 14-15). In response, defendant said that it was not a “fair statement”. Viewed in isolation, the statement might be viewed as being somewhat inconsistent 26 with defendant’s admissions of guilt. However, far from ignoring defendant’s response, and simply continuing with the allocution, the record shows two things. First, at that point in the proceedings, defense counsel interjected and asked for the opportunity to speak with defendant, which was followed by an off-the-record conversation between defense counsel and defendant. Second, following the break in the allocution, the trial court asked defendant an additional set of questions. In particular, the court confirmed and defendant admitted that he, in fact, demanded money in return for the records. Defendant also admitted that he understood that he found records that belonged to someone else which he should have returned to the provider and that it was a fair statement that by demanding that they pay him money for the records that he was extorting the Health Center. He also admitted that he knew he should not have had those particular records out in the lot. Additionally, as part of the continued inquiry, defendant acknowledged that it was a fair statement that he was overreaching when he demanded money for the records and that he should not have done what he did, and that he also understood that his conduct violated the law (S.A. 15). Thus, far from a silent record, the trial court actively pursued defendant’s response and ensured that defendant was, in fact, admitting to 27 his guilt. The Court’s prompt inquiry into defendant’s initial dispute of his conduct was sufficient to established that defendant attempted to extort money from the Health Center and thereby ensure a knowing and voluntary plea (see e.g. People v Mackie, 54 AD3d 651 [1st Dept., 2005]; People v Chapple, 269 AD2d 621 [3d Dept., 2000] ;People v Washington, 262 AD2d 868 [3d Dept., 1999]; People v Perez, 82 AD3d 1451 [3d Dept., 2011]; People v Swindell, 72 AD3d 1340, 1341 [2010]). Furthermore, having failed to express in any way any further dissatisfaction with the court’s additional inquiry, defendant plainly waived any further challenge to the plea allocution (People v Parara, 46 AD3d 936 [3d Dept., 2007]; People v Lopez, 71 NY2d at 668). What the defendant was entitled to was to have the court make an additional inquiry to ensure that he understood the nature of the charge and that fully occurred on this record. The additional comments made by defense counsel just prior to the adjournment in the proceedings also did not negate the voluntariness of defendant’s plea. When defense counsel commented that he believed that his client understood that he broke the law by extorting money but that his confusion lay in the fact that he was not trying to benefit himself, there was no indication that the statement was made in support of any application to object to the plea itself or move to withdraw the defendant’s plea. In 28 contrast, the court quickly explained to defendant that his motivation for the crime was irrelevant and that there was no “Robin Hood” defense (People v Munoz, 136 AD2d 479 [1st Dept., 1988](holding that defendant’s motive to help others did not establish a defense to the crime of larceny by extortion)). Thereafter, defendant took no issue with the court’s response and made no other application. In sum, the record demonstrates that defendant did not make any statements that negated a material element of the crime or otherwise cast doubt on the voluntariness of his guilty plea, and that a review of the allocution as a whole demonstrates that the additional inquiry by the court and defendant’s responses to those questions sufficiently established that he committed the crime of attempted grand larceny in the third degree on a theory of larceny by extortion and that defendant entered a knowing and voluntary plea of guilty (see People v Harris, 61 NY2d 9 [1983]; People v Pannettiere, supra; People v Sciolevette, 80 AD3d 630 [2d., 2011]; People v Parara, 46 AD3d at 937). Defendant’s second challenge is in essence a challenge to the evidence of his guilt. More particularly, despite his plea of guilty, defendant now claims that his admitted conduct was not criminal. As such, he appears to challenge a conceded set of facts or the application of the larceny statute to what he contends was a civil settlement of sorts. Of course, in doing so, 29 defendant completely ignores the underlying evidence in the case that showed that he attempted to extort $10,000.00 from the Greater Hudson Valley Family Health Center over medical records that were in his possession as well as his admissions of guilt, which were made under oath and which the trial court in accepting his guilty plea was entitled to accept as true (see e.g. United States v Maher, 108 F3d 1513, 1530 [2d Cir. 1997]). Defendant’s arguments also ignore other evidence that showed that he threatened the Health Center with legal action over the medical records, that the Health Center immediately contacted the police, who arranged for a controlled phone call with him, that it was he who sought the “stipulation” and that he further arranged to meet the representative from the Health Center at their office, where he expected to receive a check in the amount of $10,000.00. Furthermore, beyond the fact of his own self-serving statements that he found the records in the parking lot, there was in fact no true evidence as to how defendant came into possession of the medical records. Those facts, taken together with defendant’s clear admission that he was intent on extorting money from the Health Center, clearly demonstrated that there was certainly nothing improvident or baseless about the trial court’s acceptance of his guilty plea (People v Seeber, 4 NY3d 780 [2005]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]). 30 More fundamentally, as a claim that his conduct did not establish the elements of the crime of attempted grand larceny in the third degree, that argument also fails. In the first instance, to the extent that defendant’s waiver of his right to appeal was valid, his challenge to the sufficiency of his plea allocution is precluded by his waiver of his right to appeal (see People v Nash, 38 AD3d 684 [2d Dept. 2007]; People v Rosseter, 62 AD3d 1093 [3d Dept., 2009]). Moreover, even without regard to the waiver of his right to appeal, defendant’s challenge to the “legal sufficiency” of the admitted facts is foreclosed by his guilty plea (see People v Thomas, 53 NY2d 338, 340 [1981]; People v DiRaffaele, 55 NY3d 234 [1982]; People v Taylor, 65 NY2d 1 [1985]; People v Levin, 57 NY2d 1008, 1009 [1982]; People v Guy, supra; People v Basnight, 46 AD3d 697; [2d Dept., 2007]; People v Lawrence, 273 AD2d 805 [4th Dept., 2000]). A guilty plea is intended to mark the end of a criminal prosecution and not the gateway to further litigation, and therefore, in its most basic sense, the plea itself establishes the basis for the defendant’s guilt, and therefore acts as a further bar to any challenge to the factual basis of the defendant’s guilt (see People v Thomas, 53 NY2d at 340; People v Hansen, 95 NY2d 227, 230 [2000]; People v Taylor, 65 NY2d at 5; People v Plunkett, 19 NY3d 400, 405-406 [2012]). Importantly, the basis for what 31 was recognized as the sole exception to this steadfast principle that was recognized in Plunkett where the defendant’s plea did not preclude his challenge to his conviction for aggravated assault on a police officer because the saliva of an HIV infected prisoner was not considered to be a dangerous instrument within the meaning of the statute is not present in defendant’s case. Contrary to defendant’s post-plea and retrospective interpretation of his actions, there was nothing innocent about his actions, and nor should his conviction for his actions be viewed as against public policy (cfPeople v Plunkett, 19 NY3d at 406)(recognizing that although a defendant could admit to certain facts, he could not legally by that admission “mint” an offense for which the law does not already provide). Simply put, the law clearly recognizes that defendant had no legal right to attempt to extort any payment in the manner in which he did, and thus, his challenge presents at best what is a factual challenge as opposed to a challenge based on a legal claim that what occurred is not a crime (cfId.; compare People v Munoz, 136 AD2d 479). Holding defendant criminally responsible is in this instance is fully consistent with public policy and established law governing the prosecution of larceny by extortion (see People v Dioguardi 8 NY2d at 269- 270; People v Arnone, supra; People v Munoz, supra). 32 Finally, there was no evidence of any entrapment, and like his other claims, this claim is also unpreserved for appeal, and similarly, the fact that defendant may now be having second thoughts and believe that he misapprehended the strength of the People’s case also does not afford him a valid basis to overturn his validly entered guilty plea (see People v Jones, 44 NY2d 76 [1978]). In sum, for all of these reasons, defendant’s challenge to his guilt was forfeited by his plea and therefore, his challenge should be denied in its entirety (see People v Thomas, 53 NY2d at, 340; People v DiRaffaele, 55 NY3d 234; People v Taylor, 65 NY2d at 5; People v Levin, 57 NY2d at 1009; People v Guy, supra; People v Basnight, supra; People v Lawrence, 273 AD2d 805 [4th Dept., 2005]). Accordingly, the decision and order of the Appellate Division, which upheld defendant’s guilty plea and affirmed his conviction, should be affirmed. 33 CONCLUSION The judgment of conviction should be affirmed on appeal. Respectfully submitted, DAVID M. HOOVLER District Attorney of Orange County 18 Seward Avenue Middletown, New York 10940 (845) 615-3640 ELIZABETH L SCHULZ Assistant District Attorney ANDREW R. KASS Executive Assistant District Attorney Of Counsel Dated: Middletown, New York May2l,2015 34 AFFIDAVIT OF SERVICE STATE OF NEW YORK) ) SS: COUNTY OF ORANGE) YOLANDA VELAZQUEZ, being duly sworn, deposes and says: She is over 18 years of age and that on the Z. j tb day of May, 2015, she served three (3) copies of Respondent’s Brief and Supplemental Appendix filed in The People of the State of New York v. RAYMOND LEACH, New York State Court of Appeals APL No. 2015-00040, upon Steven A. Feldman, Feldman & Feldman, Attorneys at Law, 626 Reckson Plaza, West Tower, 6” Floor, Uniondale, New York 11556 in a securely postpaid wrapper by depositing same in a Post Office Box regularly maintained by the United States Postal Service, Middletown, New York. YOL.ANDA VELAZQUEZ Sworn to before me this Zthdayof May, 2015. Notary I Notary Pubtic, State of New York No. 025C6209351 Qualified in Orange County Commission Expires July 27,2017 COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Respondent AFFIRMATION CERTIFYING DIGITAL SUBMISSION - against - RAYMOND LEACH, Appellant. x STATE OF NEW YORK ) ss.: COUNTY OF ORANGE ) I, Elizabeth L. Schulz, an Assistant District Attorney in the Office of David M. Hoovier, the District Attorney for Orange County, and an attorney duly admitted to the practice of law before the Courts of the State of New York, hereby certify pursuant to CPLR 2105 that I have compared the foregoing digital copies of the respondent’s brief on appeal with the hard copies filed simultaneously with the Court of Appeals and that that the foregoing are identical digital copies of the corresponding documents. Dated: Middletown New York May2l,2015 ELIZABETH L. SCHULZ Assistant District Attorney