People v. Proper , 18 N.Y.S.3d 793 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 5, 2015 106180
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
RICHARD J. PROPER JR.,
Appellant.
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Calendar Date: September 18, 2015
Before: Garry, J.P., Rose, Lynch and Devine, JJ.
__________
Robert D. Siglin, Elmira, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose
Parry of counsel), for respondent.
__________
Garry, J.P.
Appeal from a judgment of the County Court of Broome County
(Smith, J.), rendered August 15, 2013, convicting defendant upon
his plea of guilty of the crime of robbery in the second degree
(two counts).
In satisfaction of a two-count indictment charging him with
robbery in the first degree, defendant pleaded guilty to two
counts of robbery in the second degree and admitted committing
separate robberies of store clerks at knife-point on different
days. Pursuant to a plea agreement that included a waiver of
appeal, defendant was sentenced as a second felony offender to an
aggregate prison term of 10 years, followed by five years of
postrelease supervision. Defendant appeals, and we affirm.
-2- 106180
Initially, as the People concede, defendant's waiver of
appeal is invalid. The record fails to reflect defendant's
understanding of the waiver or "that it was made knowingly,
intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256
[2006]; see People v Bradshaw, 18 NY3d 257, 264-265 [2011];
People v Callahan, 80 NY2d 273, 283 [1992]; People v Bouton, 107
AD3d 1035, 1036 [2013], lv denied 21 NY3d 1072 [2013]).
As to the merits, defendant argues that his guilty plea was
not knowing, voluntary and intelligent because County Court
failed to advise him of the rights he was waiving by pleading
guilty, including "the privilege against self-incrimination and
the rights to a jury trial and to be confronted by witnesses"
(People v Tyrell, 22 NY3d 359, 365 [2013], citing Boykin v
Alabama, 395 U.S. 238, 243 [1969]; accord People v Vences, 125 AD3d
1050, 1051 [2015]). While this claim was not preserved through a
postallocution motion to withdraw the plea, to the extent that it
challenges a mode of proceedings error, preservation was not
required (see People v Tyrell, 22 NY3d at 364; People v Mones,
130 AD3D 1244, 1245 [2015]). In any event, we find this
contention to be without merit. While "there must be an
affirmative showing on the record that the defendant waived his
constitutional rights," the court was not required "to
specifically enumerate all the rights to which the defendant was
entitled [or] to elicit . . . detailed waivers before accepting
the guilty plea" (People v Tyrell, 22 NY3d at 365 [internal
quotation marks and citations omitted]; see People v Klinger, 129
AD3d 1115, 1116-1117 [2015]). Here, contrary to defendant's
contentions, review of the record reveals that County Court
adequately advised him of the terms of the plea agreement, the
constitutional and trial-related rights he was forfeiting by
pleading guilty, and the consequences of his plea, and defendant
indicated that he understood and admitted the charged conduct
(cf. People v Klinger, 129 AD3d at 1117; People v Vences, 125
AD3d at 1051). Accordingly, we find that defendant's plea was
knowing, voluntary and intelligent (see People v Haffiz, 19 NY3d
883, 884-885 [2012]; People v Fiumefreddo, 82 NY2d 536, 543
[1993]; People v Stevenson, 119 AD3d 1156, 1156-1157 [2014]).
Defendant's remaining claims have been examined and lack merit.
Rose, Lynch and Devine, JJ., concur.
-3- 106180
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court