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People v. Brown

151 A.D.3d 1951 Court N.Y. App. Div. Decision date 2017-06-30 English

Judges Present — Whalen, P.J., Carni, Lindley, Curran and Scudder, JJ.

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p. 1951
The People of the State of New York, Respondent, v Erika Brown, Appellant.
[59 NYS3d 227]

Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered June 15, 2016. The judgment convicted defendant, upon her plea of guilty, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree.

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

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and one count of criminal possession of a controlled substance in the third degree (§ 220.16 [1]). At the outset, we conclude that defendant knowingly, voluntarily and intelligently waived her right to appeal, and that waiver encompasses her challenge to the severity of the sentence {see People v Lopez, 6 NY3d 248 , 255-256 [2006]). The further contention of defendant that the sentence is illegal, however, survives her waiver of the right to appeal (see People v Seaberg, 74 NY2d 1 , 9 [1989]; People v Bussom, 125 AD3d 1331 , 1331 [2015]). Nevertheless, contrary to defendant’s contention, we conclude that County Court imposed a legal sentence.

To the extent that defendant contends that the plea was not knowing, voluntary and intelligent because the court failed to conduct a sufficient inquiry to determine whether she understood the consequences of the plea, that contention also

p. 1952
survives her valid waiver of the right to appeal (see People v Green, 122 AD3d 1342 , 1343 [2014]; People v Povoski, 78 AD3d 1533 , 1533 [2010], lv denied 16 NY3d 799 [2011]). Defendant’s contention, however, is not preserved for our review because she did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v Hough, 148 AD3d 1671 , 1671 [2017]; People v Brinson, 130 AD3d 1493 , 1493 [2015], lv denied 26 NY3d 965 [2015]). We conclude in any event that defendant’s contention is “belied by [her] statements during the plea colloquy” (People v Rickard, 262 AD2d 1073 , 1073 [1999], lv denied 94 NY2d 828 [1999]; see People v Hampton, 142 AD3d 1305 , 1306-1307 [2016], lv denied 28 NY3d 1124 [2016]; People v Caldwell, 78 AD3d 1562 , 1563 [2010], lv denied 16 NY3d 796 [2011]). The record reveals that an interpreter was present throughout the plea proceeding, and defendant “acknowledged, through the interpreter, that [she] understood the terms of the plea bargain and that [she] willingly accepted them” (People v Mercedes, 171 AD2d 1044 , 1044 [1991], lv denied 77 NY2d 998 [1991]; see People v Martes, 154 AD2d 946 , 946 [1989], lv denied 75 NY2d 870 [1990]; People v Quezada, 145 AD2d 950 , 951 [1988]).

Present — Whalen, P.J., Carni, Lindley, Curran and Scudder, JJ.

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