People v Javiel, 2024 NY Slip Op 05112 [231 AD3d 967]

October 16, 2024

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Gelver Miguel Javiel, Appellant.

Samuel S. Coe, White Plains, NY, for appellant.

Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered November 18, 2022, convicting him of attempted rape in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Lopez , 6 NY3d 248 , 256 [2006]; People v Batista , 167 AD3d 69 , 76-78 [2018]). The defendant’s valid waiver of his right to appeal precludes appellate review of his challenge to the factual sufficiency of the plea allocution ( see People v Heath , 218 AD3d 693 , 694 [2023]; People v Headley , 197 AD3d 1329 , 1330 [2021]).

To the extent that the defendant contends that the factual insufficiency of the plea allocution rendered his plea involuntary and unintelligent, this contention survives a valid waiver of the right to appeal ( see People v Seaberg , 74 NY2d 1, 10 [1989]; People v Contreras , 170 AD3d 1034 , 1035 [2019]). However, the contention is unpreserved for appellate review, as the defendant did not move to withdraw his plea or otherwise raise this issue before the County Court ( see CPL 470.05 [2]; People v Lopez , 71 NY2d 662, 663 [1988]). The exception to the preservation requirement does not apply in this case because the defendant’s allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( see People v Lopez , 71 NY2d at 666).

In any event, the plea allocution was sufficient. “[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime,” and a plea allocution is sufficient if it “shows that the defendant understood the charges and made an intelligent decision to enter a plea” ( People v Goldstein , 12 NY3d 295 , 301 [2009]; see People v Marinos , 209 AD3d 875 , 875-876 [2022]). Here, the record demonstrates that the defendant understood the charges and made a voluntary and intelligent decision to enter the plea. Connolly, J.P., Chambers, Genovesi and Wan, JJ., concur..