People v Ray (2013 NY Slip Op 51133(U))

People v Ray (Jabari)

2013 NY Slip Op 51133(U) [40 Misc 3d 132(A)]

Decided on July 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

The People of the State of New York, Respondent, —

against

Jabari Ray, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (William J. O'Brien, J., at plea; Valerie Alexander, J., at sentence), rendered July 11, 2011. The judgment convicted defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the second degree.

Defendant was initially charged with aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3]). Defendant subsequently pleaded guilty to aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2]). On appeal, defendant challenges the sufficiency of the plea allocution.

Contrary to the People's threshold contention, defendant did not voluntarily, knowingly, and intelligently waive his right to appeal as part of the bargained-for plea agreement (People v Lopez, 6 NY3d 248 [2006]; People v Delvecchio, 34 Misc 3d 142[A], 2012 NY Slip Op 50091[U] [App Term, 9th & 10th Jud Dists 2012]), and, thus, his challenge to the factual sufficiency of his guilty plea is not precluded by the invalid waiver of his right to appeal. However, this issue is not preserved for appellate review, since defendant moved neither to withdraw his guilty plea during the more than four months that elapsed between his plea and [*2]sentencing, nor to vacate the judgment of conviction on that basis (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Williams, 102 AD3d 1055 [2013]; People v Glynn, 73 AD3d 1290, 1291 [2010]; see also People v Smith, 57 AD3d 1237 [2008]). Moreover, defendant did not make any statements during the plea allocution that cast doubt on his guilt or otherwise called into question the voluntariness of his plea (see Lopez, 71 NY2d at 666). In any event, despite defendant's contention challenging the factual sufficiency of the plea allocution, it was not necessary for him to personally recite either the elements or the underlying facts of the offense charged (see Glynn, 73 AD3d at 1291; Smith, 57 AD3d 1237; People v Williams, 35 AD3d 971, 972 [2006]).