People v Otunyo

People v Otunyo 2016 NY Slip Op 06151 Decided on September 27, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 27, 2016
Friedman, J.P., Andrias, Richter, Gische, Kahn, JJ.
1702 3505/12

[*1]The People of the State of New York, Respondent,

v

Kelvin Otunyo, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent

Judgment, Supreme Court, New York County (Michael J. Obus,

J.), rendered May 23, 2013, convicting defendant, upon his plea

of guilty, of criminal possession of stolen property in the third

degree, and sentencing him to a term of five years' probation,

unanimously affirmed.

Since defendant had an opportunity to withdraw his

plea, and since he was aware that his plea had immigration consequences, his present challenges to his plea do not come within the narrow exception to the preservation requirement (see People v Conceicao, 26 NY3d 375, 381-383 [2015]; People v Peque, 22 NY3d 168, 183 [2013], cert denied sub nom Thomas v New York, 574 US &mdash, 135 S Ct 90 [2014]), and we decline to review these unpreserved claims in the interest of justice. As an alternate holding, we find that the plea was knowing, intelligent and voluntary in all respects.

Defendant made a valid waiver of his right to appeal (see People v Sanders, 25 NY3d 337, 341 [2015]; People v Lopez, 6 NY3d 248, 256-257 [2006]), which forecloses review of his excessive sentence claim. Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 27, 2016

CLERK