People v. Sommers

Appellate Division of the Supreme Court of New York

People v. Sommers

140 A.D.3d 1537, 33 N.Y.S.3d 789

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 23, 2016

Docket107500

StatusPublished

Cited by14 cases

This text of 140 A.D.3d 1537 (People v. Sommers) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Sommers, 140 A.D.3d 1537, 33 N.Y.S.3d 789 (N.Y. Ct. App. 2016).

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Opinion

Lynch, J.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered January 5, 2015, *1538 convicting defendant upon his plea of guilty of the crime of rape in the first degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to rape in the first degree, and his plea included the waiver of the right to appeal. County Court thereafter imposed the agreed-upon sentence of 12 years in prison to be followed by 10 years of postrelease supervision. Defendant appeals.

We affirm. Contrary to defendant’s contention, he validly waived the right to appeal his conviction and sentence. County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea, and defendant acknowledged that he understood and was voluntarily waiving his right (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Rubio, 133 AD3d 1041, 1042 [2015]). Defendant also signed a written waiver that explained the appeal waiver and indicated that counsel had discussed its ramifications with him (see People v Clark, 135 AD3d 1239, 1239-1240 [2016], lv denied 27 NY3d 995 [2016]; People v Fate, 117 AD3d 1327, 1328 [2014], lv denied 24 NY3d 1083 [2014]). Defendant’s valid appeal waiver precludes our review of his claim that his sentence is harsh and excessive (see People v Smith, 136 AD3d 1107, 1109 [2016], lv denied 27 NY3d 1075 [May 13, 2016]; People v Butler, 134 AD3d 1349, 1350 [2015], lv denied 27 NY3d 963 [2016]).

Defendant also argues that his plea was not knowing, intelligent and voluntary because County Court failed to advise him of the trial-related rights forfeited by pleading guilty (see Boykin v Alabama, 395 US 238, 243 [1969]). Inasmuch as defendant failed to make a postallocution motion to withdraw his plea, despite having several weeks to do so prior to his sentencing, this issue is not preserved for our review (see People v Conceicao, 26 NY3d 375, 382 [2015]; People v Walker, 135 AD3d 1244, 1245 [2016]). Moreover, the record actually shows that defendant was fully advised of his trial-related rights during the allocution.

Lahtinen, J.P., Rose, Clark and Aarons, JJ., concur.

Ordered that the judgment is affirmed.

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Lynch, J.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered January 5, 2015, *1538 convicting defendant upon his plea of guilty of the crime of rape in the first degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to rape in the first degree, and his plea included the waiver of the right to appeal. County Court thereafter imposed the agreed-upon sentence of 12 years in prison to be followed by 10 years of postrelease supervision. Defendant appeals.

We affirm. Contrary to defendant’s contention, he validly waived the right to appeal his conviction and sentence. County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea, and defendant acknowledged that he understood and was voluntarily waiving his right (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Rubio, 133 AD3d 1041, 1042 [2015]). Defendant also signed a written waiver that explained the appeal waiver and indicated that counsel had discussed its ramifications with him (see People v Clark, 135 AD3d 1239, 1239-1240 [2016], lv denied 27 NY3d 995 [2016]; People v Fate, 117 AD3d 1327, 1328 [2014], lv denied 24 NY3d 1083 [2014]). Defendant’s valid appeal waiver precludes our review of his claim that his sentence is harsh and excessive (see People v Smith, 136 AD3d 1107, 1109 [2016], lv denied 27 NY3d 1075 [May 13, 2016]; People v Butler, 134 AD3d 1349, 1350 [2015], lv denied 27 NY3d 963 [2016]).

Defendant also argues that his plea was not knowing, intelligent and voluntary because County Court failed to advise him of the trial-related rights forfeited by pleading guilty (see Boykin v Alabama, 395 US 238, 243 [1969]). Inasmuch as defendant failed to make a postallocution motion to withdraw his plea, despite having several weeks to do so prior to his sentencing, this issue is not preserved for our review (see People v Conceicao, 26 NY3d 375, 382 [2015]; People v Walker, 135 AD3d 1244, 1245 [2016]). Moreover, the record actually shows that defendant was fully advised of his trial-related rights during the allocution.

Lahtinen, J.P., Rose, Clark and Aarons, JJ., concur.

Ordered that the judgment is affirmed.

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140 A.D.3d 1537, 33 N.Y.S.3d 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sommers-nyappdiv-2016.

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