People v. Grabowski , 2021 NY Slip Op 07424 ( 2021 )

People v Grabowski (2021 NY Slip Op 07424)

People v Grabowski

2021 NY Slip Op 07424

Decided on December 23, 2021

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 23, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.

1033 KA 19-01046

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

JOHN M. GRABOWSKI, ALSO KNOWN AS JOHN MICHAEL GRABOWSKI, ALSO KNOWN AS JOHN GRABOWSKI, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered April 26, 2019. The judgment convicted defendant, upon a plea of guilty, of rape in the first degree.

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

Memorandum: Defendant appeals from a judgment convicting him, upon his Alford plea of guilty, of rape in the first degree (Penal Law § 130.35 [4]). We agree with defendant that his "waiver of the right to appeal was invalid, because [it] encompassed post-conviction motions" (People v Suarez-Montoya, 183 AD3d 765, 765 [2d Dept 2020]; see People v Byrd, 181 AD3d 1183, 1184 [4th Dept 2020], lv denied 35 NY3d 1025 [2020]). The sentence, however, is not unduly harsh or severe. Defendant's contention that County Court improperly penalized him at sentencing for taking an Alford plea is unpreserved for appellate review (see generally People v Hurley, 75 NY2d 887, 888 [1990]). Finally, the certificate of conviction incorrectly states that defendant pleaded guilty on April 25, 2019, and it must therefore be amended to reflect the correct date of March 25, 2019.

Entered: December 23, 2021

Ann Dillon Flynn

Clerk of the Court