JONES, JEREMIAH, PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
679
KA 12-01166
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JEREMIAH JONES, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered February 1, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree
(two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of two counts of burglary in the third degree
(Penal Law § 140.20). We agree with defendant that he did not
knowingly waive his right to appeal. “Although the record establishes
that defendant executed a written waiver of the right to appeal, there
was no colloquy between County Court and defendant regarding the
waiver of the right to appeal to ensure that it was knowingly,
voluntarily and intelligently entered” (People v Carno, 101 AD3d 1663,
1664, lv denied 20 NY3d 1060; see People v Briggs, 115 AD3d 1245,
1246). Although defendant’s contention that the plea was not
knowingly, voluntarily, and intelligently entered thus is not
precluded by the invalid waiver, he failed to preserve that contention
for our review inasmuch as he did not move to withdraw the plea or to
vacate the judgment of conviction (see People v Robinson, 112 AD3d
1349, 1349). Contrary to his contention, “this case does not fall
within the rare exception to the preservation requirement because
nothing in the plea allocution calls into question the voluntariness
of the plea or casts ‘significant doubt’ upon his guilt” (id. at 1349,
quoting People v Lopez, 71 NY2d 662, 666). The court did not abuse
its discretion in terminating defendant from the drug treatment
program after he violated the conditions of the program (see CPL
216.05 [9] [c]; People v Dawley, 96 AD3d 1108, 1109, lv denied 19 NY3d
-2- 679
KA 12-01166
1025). The sentence is not unduly harsh or severe.
Entered: June 13, 2014 Frances E. Cafarell
Clerk of the Court