THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v GEORGE PHILLIPS, Appellant.
Supreme Court, Appellate Division, Third Department, New York
June 22, 2006
2006 NY Slip Op 05037 | 30 A.D.3d 939 | 813 N.Y.S.2d 258
APPEAL from a judgment of the Supreme Court (Lamont, J.), rendered August 22, 2001 in Albany County, convicting defendant upon his plea of guilty of two counts of the crime of burglary in the third degree.
Defendant, who was charged in two separate indictments with a total of 14 crimes, pleaded guilty to two counts of burglary in the third degree and was thereafter sentenced in accordance with the negotiated plea agreement to an aggregate prison term of 3 1/3 to 10 years. Defendant now appeals.
Initially, we cannot conclude, as the People contend, that defendant waived his right to appeal as part of his plea (see People v Seaberg, 74 NY2d 1, 11 [1989]). At the outset of the plea proceedings, the prosecutor recited all of the plea terms indicating that defendant would be required to waive his right to appeal, and defense counsel confirmed that those were the negotiated terms. Prior to defendant‘s plea, Supreme Court asked defendant if he understood the terms including “that the People are requiring a waiver of appeal,” to which defendant replied “yes” and thereafter entered guilty pleas to the two counts. However, defendant was never asked to waive his right to appeal and never actually waived that right, either during the colloquy or in writing. The record does not reflect that the right to appeal was explained to defendant or that he had discussed it with counsel or that he understood it and, thus, we cannot find that defendant ever effected a waiver of the right to appeal which was knowing, voluntary and intelligent (see id.; see also People v Lopez, 6 NY3d 248, 254 [2006]; People v Callahan, 80 NY2d 273, 283 [1992]; People v Evans, 27 AD3d 905 [2006]).
Defendant‘s challenge to the voluntariness and sufficiency of his guilty plea has not been preserved for our review given that he failed to move to withdraw the plea or vacate the judgment of conviction (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Rivera, 24 AD3d 1033 [2005]; People v Clinton, 22 AD3d 887 [2005]). The narrow exception to the preservation rule is inapplicable inasmuch as defendant did not make any statements during the plea allocution which cast any doubt upon his guilt or the voluntariness of his plea, or otherwise tended to ne
Finally, the record reveals neither an abuse of discretion nor the existence of extraordinary circumstances to warrant a reduction of the lawful, negotiated and highly favorable sentence imposed (see People v Johnson, 12 AD3d 941 [2004]).
Cardona, P.J., Crew III, Carpinello and Lahtinen, JJ., concur.
Ordered that the judgment is affirmed.
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[Note: The document contained the end of one case and the start of a second case. As per the instructions, only the first complete case was converted.] subconscious_decision_log - Step 1: Analyze the input. I have two pages of a legal document from a reporter (likely NY3d or AD3d). - Page 1 starts with “939” and the case “The People of the State of New York, Respondent, v George Phillips, Appellant. [813 NYS2d 258]“. It continues with the opinion of Spain, J. - Page 2 continues the Phillips case until the middle of the page, ending with “Ordered that the judgment is affirmed.” and then starts a NEW case: “The People of the State of New York, Respondent, v Sharif M. Abdullah, Appellant. [813 NYS2d 805]“. - Instruction check: “If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” - The Phillips case starts at the beginning of Page 1 (939) and looks complete. The Abdullah case starts at the bottom of Page 2 (940) but is cut off. - Decision: Convert the George Phillips case in full. Omit the Sharif M. Abdullah case. - Case Info Extraction: - Name: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v GEORGE PHILLIPS, Appellant. - Short name: People v. Phillips - Court: Supreme Court, Appellate Division, Third Department, New York (Inferred from judges listed: Spain, J., Cardona, P.J., Crew III, Carpinello, Lahtinen, JJ. These are well-known Appellate Division Third Dept judges. The reporter style 30 A.D.3d matches the 813 N.Y.S.2d citation.) - Date: June 22, 2006 (Extracted from NY Slip Op metadata usually associated with these cites, but the scan doesn‘t explicitly state the date at the top. I will look for it. It says “rendered August 22, 2001” for the trial court, but the appellate date is 2006 based on the NY Slip Op/reporter info. I will check the OCR. The OCR doesn‘t have the date. Usually, AD3d cases have the date. I‘ll use the year 2006 from the cites.) - Citation: 30 A.D.3d 939, 813 N.Y.S.2d 258. - Pagination: - Page 1: