People v. Oballe (Dulvin)

People v Oballe (2022 NY Slip Op 51138(U)) [*1] People v Oballe (Dulvin) 2022 NY Slip Op 51138(U) [77 Misc 3d 128(A)] Decided on October 27, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ 2020-993 P CR The People of the State of New York, Respondent, against Dulvin Efrain Andres Oballe, Appellant. Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Putnam County District Attorney (David A. Rosenberg of counsel), for respondent. Appeal from a judgment of the Justice Court of the Village of Brewster, Putnam County (Richard L. O'Rourke, J.), rendered November 18, 2019. The judgment convicted defendant, upon his plea of guilty, of endangering the welfare of a child, and imposed sentence. By decision and order of this court dated May 24, 2022, upon finding that prior counsel's Anders brief (see Anders v California, 386 US 738 [1967]) was inadequate, this court held the appeal in abeyance and new counsel was assigned to prosecute the appeal (People v Oballe, 75 Misc 3d 130[A], 2022 NY Slip Op 50433[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). ORDERED that the judgment of conviction is affirmed. Defendant was charged, in separate felony complaints, with, respectively, rape in the second degree (Penal Law § 130.30 [1]) and disseminating indecent material to minors in the first degree (Penal Law § 235.22), and, in a misdemeanor accusatory instrument, with endangering the welfare of a child (Penal Law § 260.10 [1]). In court on September 9, 2019, defendant pleaded guilty to endangering the welfare of a child pursuant to a plea deal whereby the felony complaints were dismissed as covered under the misdemeanor plea (see CPL 180.85). Thereafter, the matter was adjourned for more than two months, to November 18, 2019, on which date defendant was sentenced in accordance with the plea agreement. At no time prior to or during his sentencing did defendant challenge any aspect of the prosecution, plea colloquy, the waiver of misdemeanor appellate rights he signed, or the procedures employed by the court in pronouncing and imposing sentence. The written waiver of appeal and defendant's plea allocution are infirm. Neither the oral colloquy nor the written waiver of his right to appeal informed defendant of the appellate rights [*2]he retained despite his plea and waiver (see People v Sanders, 25 NY3d 337, 341 [2015] ["the plea colloquy here was sufficient because the right to appeal was adequately described without lumping it into the panoply of rights normally forfeited upon a guilty plea"]). In reality, "while the phrase 'waiver of the right to appeal' is a 'useful shorthand' . . . , the term 'can misleadingly suggest a monolithic end to all appellate rights [when i]n fact . . . no appeal waiver serves as an absolute bar to all appellate claims' " (People v Thomas, 34 NY3d 545, 559 [2019], quoting Garza v Idaho, 586 US —, 139 S Ct 738, 744 [2019]). Nevertheless, most of defendant's appellate challenges to his prosecution, plea and sentencing are unpreserved (see People v Callahan, 80 NY2d 273, 281 [1992] ["appellate challenges to the procedures utilized in determining and imposing sentence are forfeited if they are not raised in a timely manner before the trial court as required by CPL 470.05 (2). A fortiori, such challenges may effectively be waived by a voluntarily and intelligently made agreement entered in connection with a sentence or plea bargain"] [citations omitted]; see also People v Peque, 22 NY3d 168, 182 [2013] [Peque claims must "have been preserved as a matter of law for (appellate) review"]; People v Green, 54 NY2d 878, 880 [1981] [the court's failure to solicit a presentencing statement from defendant, after his counsel spoke, "was not preserved for appellate review"]; People v Kaye, 190 AD3d 767, 768 [2021] ["the defendant's challenge to . . . his plea allocution is unpreserved for appellate review, as he did not move to vacate his plea or otherwise raise the issue before the (Justice) Court"]; People v Jackson, 114 AD3d 807, 807 [2014] ["defendant's contention that his plea of guilty was not knowingly or voluntarily entered is unpreserved for appellate review because he did not move to vacate his plea or otherwise raise the issue in the (Justice) Court"]), and we decline to address these points as a matter of discretion in the interest of justice. Defendant's contention that the felony complaints were not properly reduced to misdemeanors lacks merit, as the felony complaints were never reduced but were dismissed pursuant to defendant's plea of guilty to a misdemeanor offense charged in a separate accusatory instrument (see CPL 180.85). Lastly, defendant's claim here of ineffective assistance of counsel does not appear to be fully "demonstrable on the main record but rather requires consideration of factual issues not adequately reflected on that record" (People v Maffei, 35 NY3d 264, 269 [2020] [internal quotation marks omitted]). Thus, "it would be better . . . that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10" (id. at 270 [internal quotation marks omitted]). Accordingly, the judgment of conviction is affirmed. GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 27, 2022