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People v. Moorer

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROBERT C. MOORER, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Monroe County (Elma A. Bellini, A.J.), rendered October 26, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the first degree.

PRESENT: SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ.

MEMORANDUM AND ORDER

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 criminal contempt in the first degree (Penal Law § 215.51 [b] [v]). We agree with defendant that his waiver of the right to appeal is invalid inasmuch as the record does not "establish that [he] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256; see People v Moyett, 7 NY3d 892, 893). Nevertheless, defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665). We further reject the contention of defendant that his recitation of the facts underlying the crime cast "significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the plea" (id. at 666). In any event, the record establishes that Supreme Court made a further inquiry to ensure that defendant's plea was knowing and voluntary (see id.; People v Hinkson, 59 AD3d 941). Finally, defendant's bargained-for sentence is not unduly harsh or severe.

20090605

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