Judges: Lindley, Nemoyer, Peradotto, Scudder, Whalen
Filed Date: 4/29/2016
Status: Precedential
Modified Date: 10/19/2024
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May 23, 2012. The judgment convicted defendant, upon his plea of guilty, of burglary 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 plea of guilty, of burglary in the first degree (Penal Law § 140.30 [3]). We agree with defendant that the waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v Jones, 107 AD3d 1589, 1589 [2013], lv denied 21 NY3d 1075 [2013] [internal quotation marks omitted]; see People v Amir W., 107 AD3d 1639, 1640 [2013]), and because “there is no basis upon which to conclude that the court ensured ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (Jones, 107 AD3d at 1590, quoting People v Lopez, 6 NY3d 248, 256 [2006]). We nevertheless reject defendant’s challenge to the severity of the sentence.
Defendant contends that he was denied his due process right to an interpreter at some proceedings, requiring reversal of the conviction. Upon our review of the record, we conclude that defendant, who was represented by counsel, failed to preserve his contention for our review because he never objected to the absence of an interpreter (see People v Robles, 86 NY2d 763, 764-765 [1995]; People v Rivera, 15 AD3d 859, 860 [2005], lv denied 4 NY3d 856 [2005]). In any event, we conclude that there was only one preliminary court appearance during which an interpreter may not have been present, and defendant’s presence at that appearance was not required {see generally People v Dokes, 79 NY2d 656, 660 [1992]). Thus, any translation for his benefit would have been unnecessary.
By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our