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People v. Devault

124 A.D.3d 1140 Court N.Y. App. Div. Decision date 2015-01-29 English

Judges Lahtinen, J.E, McCarthy, Rose and Clark, JJ., concur.

Delivered by Lynch, J.

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p. 1140
The People of the State of New York, Respondent, v Kevin Devault, Appellant.
[1 NYS3d 579]—

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 22, 2012, convicting defendant upon his plea of guilty of the crimes of course of sexual conduct in the first degree, course of sexual conduct in the second degree, rape in the second degree and incest in the second degree.

In satisfaction of a 17-count indictment, defendant pleaded guilty to course of sexual conduct in the first degree, course of sexual conduct in the second degree, rape in the second degree and incest in the second degree. Defendant also executed a written waiver of his right to appeal. Following the denial of defendant’s motion to vacate the plea, County Court sentenced him to an aggregate term of 25 years in prison, to be followed by 20 years of postrelease supervision. Defendant now appeals.

We affirm. Initially, we reject defendant’s argument that his waiver of the right to appeal is invalid. Any ambiguity in County Court’s discussion of the waiver was resolved by the written waiver and defendant’s oral confirmation that he both had signed the written waiver in the presence of counsel and was waiving his right to appeal voluntarily (see People v Ramos, 7 NY3d 737 , 738 [2006]; People v Fling, 112 AD3d 1001 , 1002 [2013], lv denied 23 NY3d 1020 [2014]; see also People v Bradshaw, 18 NY3d 257 , 266-267 [2011]). Defendant’s sole remaining challenge on this appeal is that his plea must be deemed involuntary inasmuch as his recitation of the facts did not

p. 1141
establish the elements of the crimes to which he pleaded guilty. This argument amounts to a challenge to the facial sufficiency of his plea and is barred by defendant’s valid waiver of the right to appeal and his failure to preserve the issue by raising it in his motion to withdraw his plea (see People v Long, 117 AD3d 1326 , 1326-1327 [2014], lv denied 24 NY3d 1003 [2014]; People v Mydosh, 117 AD3d 1195 , 1196 [2014], lv denied 24 NY3d 963 [2014]). Moreover, this is not the “rare case” that comes “within the narrow exception to the preservation requirement” inasmuch as defendant’s factual recitation did not actually negate an essential element of the crime to which he pleaded (People v Worden, 22 NY3d 982 , 985 [2013] [internal quotation marks and citation omitted]; see People v Mydosh, 117 AD3d at 1196 ; People v Teele, 92 AD3d 972 , 972 [2012]).

Lahtinen, J.E, McCarthy, Rose and Clark, JJ., concur.

Ordered that the judgment is affirmed.

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