People v Adams

People v Adams 2008 NY Slip Op 10268 [57 AD3d 1385] December 31, 2008 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent, v Ronald Adams, Appellant.

—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for defendant-appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent.

Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.), rendered November 29, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted forgery in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted forgery in the second degree (Penal Law §§ 110.00, 170.10 [2]). We agree with defendant that he did not validly waive his right to appeal. The record establishes that Supreme Court (John J. Brunetti, A.J.) failed to " 'engage[ ] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' " (People v Brown, 296 AD2d 860 [2002], lv denied 98 NY2d 767 [2002]; see People v Matthews, 24 AD3d 1306 [2005], lv denied 6 NY3d 850 [2006]). In any event, although the contention of defendant that his plea was not knowingly, voluntarily, and intelligently entered would survive even a valid waiver of the right to appeal (see People v Elardo, 52 AD3d 1272 [2008], lv denied 11 NY3d 787, 788 [2008]; People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]), we conclude that the contention of defendant is actually a challenge to the factual sufficiency of the plea allocution because he contends therein that he failed to recite the underlying facts of the crime (see People v Williams, 35 AD3d 1273 [2006], lv denied 8 NY3d 928 [2007]). Defendant failed to preserve that contention for our review (see id.), and this case does not fall within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988]). Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra, Lunn, Fahey and Green, JJ.