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People v. Henion

Supreme Court of New York, Third Department

October 31, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
WILLIAM HENION, Appellant.

Calendar Date: October 9, 2013

Carl J. Silverstein, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (David Berson of counsel), for respondent.

Before: Rose, J.P., Lahtinen, Garry and Egan Jr., JJ.

MEMORANDUM AND ORDER

Garry, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered January 18, 2011, convicting defendant upon his plea of guilty of the crime of reckless endangerment in the first degree (two counts).

Defendant waived indictment and was charged in two superior court informations with reckless endangerment in the first degree, stemming from a high speed chase involving multiple police agencies at speeds in excess of 110 miles per hour through the Towns of Fallsburg and Mamakating in Sullivan County. Pursuant to a negotiated plea agreement, defendant pleaded guilty to both crimes in exchange for a sentence of six months in jail followed by five years of probation, which included a three- to six-month inpatient treatment program. Defendant also waived his right to appeal as part of the plea agreement. Thereafter, defendant absconded from the treatment program and failed to appear for sentencing, after which County Court imposed an enhanced sentence of 2⅓ to 7 years in prison on each count, to run concurrently, with a recommendation for participation in the shock treatment program. Defendant appeals.

We affirm. Initially, to the extent that defendant contends that his waiver of appeal was invalid, we find this argument unavailing. While County Court should have been more thorough in distinguishing the right to appeal from other rights relinquished during the allocution, the written waiver executed by defendant and his counsel and approved by the court also acknowledged defendant's right to appeal, indicated that he had discussed the waiver and its consequences with counsel, and affirmed that he was voluntarily waiving the right (see People v White, 96 A.D.3d 1299, 1299-1300 [2012], lv denied 19 N.Y.3d 1029 [2012]; People v McCaskill, 76 A.D.3d 751, 752 [2010]). To the extent that the waiver encompassed any nonwaivable issues, they are simply excluded from its scope and the balance of the waiver remains valid (see People v Gruber, 108 A.D.3d 877, 878 [2013]; People v Neal, 56 A.D.3d 1211, 1211 [2008], lv denied 12 N.Y.3d 761 [2009]).

Defendant's challenge to the voluntariness of his plea and his argument that he was denied the effective assistance of counsel are unpreserved for our review inasmuch as the record does not reflect that he moved to withdraw his plea or vacate the judgment of conviction (see People v Sylvan, 107 A.D.3d 1044, 1045-1046 [2013]; People v Ladieu, 105 A.D.3d 1265, 1265-1266 [2013], lv denied 21 N.Y.3d 1017 [2013]). As nothing in the record casts doubt upon defendant's guilt, the narrow exception to the preservation requirement is not implicated here (see People v Cruz, 104 A.D.3d 1022, 1023 [2013]; People v Revette, 102 A.D.3d 1065, 1065-1066 [2013]). Likewise, defendant's contention that he should have been allowed the opportunity to withdraw his plea prior to the imposition of an enhanced sentence has not been preserved by his failure to object to the enhanced sentence or move to withdraw his plea (see People v Gilbert, 106 A.D.3d 1133, 1133 [2013]; People v DePalma, 99 A.D.3d 1116, 1116-1117 [2012], lv denied 20 N.Y.3d 1010 [2013]).

Defendant's remaining contentions have been considered and found to be without merit.

Rose, J.P., Lahtinen and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.


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