PETER, NANETTE R.L., PEOPLE v , 33 N.Y.S.3d 918 ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
640
KA 14-00724
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
NANETTE R.L. PETER, DEFENDANT-APPELLANT.
HUNT & BAKER, HAMMONDSPORT (BRENDA SMITH ASTON OF COUNSEL), FOR
DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered January 22, 2014. The judgment convicted
defendant, upon her plea of guilty, of reckless endangerment in the
first 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 reckless endangerment in the first degree
(Penal Law § 120.25). We agree with defendant that her waiver of the
right to appeal does not encompass her challenge to the severity of
her sentence. “ ‘[N]o mention was made on the record during the
course of the allocution concerning the waiver of defendant’s right to
appeal [her] conviction that [she] was also waving [her] right to
appeal the harshness of [her] sentence’ ” (People v Saeli, 136 AD3d
1290, 1291). Although defendant signed a written appeal waiver that
expressly encompassed a challenge to the sentence, County Court did
not inquire before accepting the plea whether defendant understood the
written waiver or whether she had even read the waiver (see id.;
People v Banks, 125 AD3d 1276, 1277, lv denied 25 NY3d 1159).
Nevertheless, we reject defendant’s challenge to the severity of the
sentence.
Defendant’s challenge to the factual sufficiency of the plea
allocution is foreclosed by her valid waiver of the right to appeal
the conviction and, in any event, defendant failed to preserve that
challenge for our review by failing to move to withdraw the plea or to
vacate the judgment of conviction (see People v Hicks, 128 AD3d 1358,
1359, lv denied 27 NY3d 999). We reject defendant’s contention that
this case falls within the narrow exception to the preservation
-2- 640
KA 14-00724
doctrine (see People v Lopez, 71 NY2d 662, 666).
Entered: July 1, 2016 Frances E. Cafarell
Clerk of the Court