People v Cuthbertson (Clifton)

[*1] People v Cuthbertson (Clifton) 2010 NY Slip Op 50892(U) [27 Misc 3d 138(A)] Decided on May 17, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 17, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2006-1395 W CR.

The People of the State of New York, Respondent,

against

Clifton Cuthbertson, Appellant.

Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Mark A. Gross, J.), rendered August 8, 2006. The judgment convicted defendant, upon his plea of guilty, of petit larceny.

ORDERED that the judgment of conviction is affirmed.

Defendant, initially charged in a felony complaint with grand larceny in the fourth degree (Penal Law § 155.30 [5]), pleaded guilty to petit larceny (Penal Law § 155.25). In the course of the plea proceedings, defendant executed a general waiver of rights form, which included a waiver of the right to appeal, and was sentenced to a day's incarceration. Defendant appeals, arguing that the City Court failed to conduct a proper inquiry into whether his guilty plea was knowingly, voluntarily and intelligently entered, in that he had previously expressed his innocence of the original crime charged at his arraignment. The judgment of conviction should be affirmed.

We note at the outset that defendant did not effectively waive his right to appeal. As with any such waiver, the waiver of the right to appeal must occur under "constitutionally acceptable circumstances" (People v Callahan, 80 NY2d 273, 283 [1992]) via a record that "afford[s] a sufficient basis for concluding that a defendant's waiver of [the] right to appeal was knowing, intelligent [and] voluntary" (id.). The record herein does not support an inference that defendant was informed of the nature and consequences of the waiver of the right to appeal that are "separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256-257 [2006]; see also People v Moyette, 7 NY3d 892, 893 [2006]; [*2]People v Muniz, 91 NY2d 570, 572-573 [1998]). Indeed, a review of the record on appeal in People v Rivera (65 AD3d 1265 [2009]) reveals that the Appellate Division, Second Department, rejected, as inadequate to support a valid waiver of the right to appeal, an oral waiver that did not significantly differ from the combined oral and written waiver at issue herein.

In view of the foregoing, we now address the issue raised by defendant on appeal. Defendant failed to preserve his claim of a defect in the plea proceedings by raising the issue at the plea proceedings or by a motion to withdraw the plea or to vacate the judgment (People v Toxey, 86 NY2d 725, 726 [1995]; People v Williams, 70 AD3d 1059 [2010]). The deficiency alleged, defendant's protestation of innocence at his arraignment on the felony charge, does not qualify as an exception to the preservation requirement (People v Lopez, 71 NY2d 662, 666 [1988]; see People v LeGrady, 50 AD3d 1059, 1060 [2008]) because such conclusory assertions of innocence, uttered outside the four corners of the plea and sentencing proceedings, do not require further inquiry to determine the propriety of the plea, particularly where, as here, defendant readily admitted the facts underlying the charge to which he pleaded (e.g. People v Sands, 45 AD3d 414, 415 [2007]; People v Bonilla, 299 AD2d 934, 935 [2002]; People v Negron, 222 AD2d 327, 327 [1995]). Upon a review of the record, we find no basis to disturb the plea (People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Moissett, 76 NY2d 909, 912 [1990]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: May 17, 2010