People v. Cook (Anthony)

People v Cook (2021 NY Slip Op 50586(U)) [*1] People v Cook (Anthony) 2021 NY Slip Op 50586(U) [72 Misc 3d 127(A)] Decided on June 24, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 24, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ 2018-1100 S CR The People of the State of New York, Respondent, against Anthony Cook, Appellant. Suffolk County Legal Aid Society (Amanda E. Schaefer of counsel), for appellant. Suffolk County District Attorney (Edward A. Bannon of counsel), for respondent. Appeal from a judgment of the District Court of Suffolk County, First District (Richard T. Dunne, J.), rendered April 4, 2018. The judgment convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fifth degree, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Defendant was charged in a felony complaint with criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]). On October 12, 2017, after reducing the felony charge of criminal possession of stolen property in the fourth degree to criminal possession of stolen property in the fifth degree (Penal Law § 165.40), through notations made to the face of the accusatory instrument, defendant pleaded guilty to criminal possession of stolen property in the fifth degree in exchange for the promised sentence of time served and probation. Sentencing was adjourned to January 25, 2018 and the court ordered a presentence report. The report, dated January 19, 2018, indicated that, while awaiting sentence in this matter, defendant was arrested twice in December of 2017. At the conclusion of the report, the Department of Probation recommended a sentence of imprisonment for defendant "[a]s the defendant has failed at community supervision in the past and no court action thus far has deterred his criminal activity, he remains a persistent risk within the community." On January 25, 2018, the court refused to sentence defendant to probation, based upon the presentence report and defendant's subsequent arrests, and defendant withdrew his guilty plea. On April 4, 2018, as part of a global disposition of three of defendant's pending criminal matters, defendant pleaded guilty to criminal possession of stolen property in the fifth degree, and sentence was imposed. On appeal, defendant claims [*2]that his guilty plea was not entered voluntarily, knowingly and intelligently. "Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea . . . or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10" (People v Peque, 22 NY3d 168, 182 [2013] [citations omitted]; see also People v Conceicao, 26 NY3d 375, 381 [2015]). However, a narrow exception to the preservation requirement has been recognized where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record (see People v Williams, 27 NY3d 212, 219-223 [2016]; People v Louree, 8 NY3d 541, 546 [2007]). Here, since defendant was sentenced in the same proceeding in which he entered his plea of guilty, he "faced a practical inability to move to withdraw [his] plea" (Conceicao, 26 NY3d at 382). Therefore, defendant's claim is reviewable under the exception to the preservation rule (see People v Sougou, 26 NY3d 1052, 1054 [2015]). Nothing defendant said or failed to say in his plea allocution negated any element of the offense to which he pleaded guilty, cast doubt on his admitted guilt or called into question the voluntariness of his plea. In view of the foregoing, contrary to defendant's contention, the court was not required to inquire into the statements made by him to the probation officers who had prepared the presentence report (see People v Ospina, 175 AD3d 513 [2019]; People v Zapata, 143 AD3d 477 [2016]; People v Appling, 94 AD3d 1135 [2012]; People v Kelly, 50 AD3d 921 [2008]; People v Pantoja, 281 AD2d 245 [2001]). Consequently, the record as a whole demonstrates that defendant's plea was entered into knowingly, voluntarily, and intelligently (see People v Sosa, 28 NY3d 965, 966 [2016]; Conceicao, 26 NY3d 375). Accordingly, the judgment of conviction is affirmed. RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 24, 2021