By: Aliotta, P.J., Elliot, Toussaint, JJ. New York City Legal Aid Society (Kristina Schwarz of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and William H. Branigan of counsel), for respondent. 2018-1236 Q CR. PEOPLE v. SHAKESPEARE, KERRYANN — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Ushir Pandit-Durant, J.), rendered February 27, 2018. The judgment convicted defendant, upon her plea of guilty, of unlawful possession of personal identification information in the third degree, and imposed sentence. The appeal from the judgment of conviction brings up for review the propriety of a permanent order of protection. ORDERED that the judgment of conviction is affirmed. Pursuant to a negotiated plea agreement, defendant pleaded guilty to unlawful possession of personal identification information in the third degree (Penal Law §190.81) in exchange for a sentence of a conditional discharge and payment of $6,651 in restitution, as well as a permanent order of protection in favor of the complainant, a patient, whose debit card defendant, an at-home health care worker, admitted to using without authority or permission to withdraw and steal the restitution amount over the course of nearly two years. A temporary order of protection was in effect throughout the proceedings until it was replaced by a permanent order of protection at sentencing. Although the issuance of the permanent order of protection during the sentencing proceeding is not a part of defendant’s sentence (see CPL 530.13 [4]; People v. Nieves, 2 NY3d 310, 316 [2004]), defendant’s appeal from the judgment of conviction brings up for review defendant’s challenge to the Criminal Court’s issuance of the permanent order of protection (see CPL 450.10 [1]; People v. Rodriguez, 68 Misc 3d 130[A], 2020 NY Slip Op 50953[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020] ["a permanent order of protection entered upon a conviction may be challenged on an appeal from a judgment of conviction"]). However, defendant’s claim is unpreserved (see CPL 470.05 [2]; Nieves, 2 NY3d at 316-318; People v. Mitchell, 142 AD3d 1185 [2016]; People v. May, 138 AD3d 1146, 1147 [2016]; People v. O’Conner, 136 AD3d 945 [2016]; People v. Sweeney, 106 AD3d 841, 842 [2013]), and we decline to address it as a matter of discretion in the interest of justice. Accordingly, the judgment of conviction is affirmed. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. May 7, 2021
By: Weston, J.P., Elliot, Toussaint, JJ. Martin Geoffrey Goldberg, for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and William H. Branigan of counsel), for respondent. 2018-2331 Q CR. PEOPLE v. ARCE-RAMIREZ, JOSE — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Bruna DiBiase, J.), rendered October 3, 2018. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Defendant was charged in a felony complaint with strangulation in the second degree (Penal Law §121.12), assault in the third degree (Penal Law §120.00 [1]), endangering the welfare of a child (Penal Law §260.10 [1]), attempted assault in the third degree (Penal Law §§110.00, 120.00 [1]), and harassment in the second degree (Penal Law §240.26 [1]). After several court conferences, defendant pleaded guilty to the added charge of assault in the third degree (Penal Law §120.00 [2]) in satisfaction of the accusatory instrument. On appeal, defendant contends that “the felony charge remains open and [he] pleaded guilty to something he was not charged with.” Additionally, defendant contends that the record does not establish that he knowingly, intelligently, and voluntarily waived his constitutional rights at the plea proceeding. Based upon the record before this court, the felony charge of strangulation in the second degree was properly reduced (see CPL 180.50) to the misdemeanor charge of criminal obstruction of breathing (Penal Law §121.11 [a]), and the felony complaint was properly converted to an information by notations appearing thereon (see CPL 180.50 [3] [a] [iii]). The notations further indicated that the count of assault in the third degree, to which defendant pleaded guilty, was properly added to the accusatory instrument (see CPL 100.45 [3]). Consequently, contrary to defendant’s contention, the felony charge did not remain open and he did not plead guilty to a count with which he had not been charged. Generally, a defendant must move to withdraw his guilty plea or vacate the judgment of conviction to preserve a claim that the plea is invalid (see People v. Conceicao, 26 NY3d 375, 381 [2015]). However, a narrow exception exists “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” (id.; People v. Louree, 8 NY3d 541, 546 [2007]). Here, defendant’s claim is reviewable on direct appeal, despite the fact that he did not move to withdraw his plea or vacate the judgment of conviction, as he faced a practical inability to move to withdraw the plea because he was sentenced on the same date as the plea proceeding (see People v. Sougou, 26 NY3d 1052, 1054 [2015]; Conceicao, 26 NY3d at 382). A guilty plea is not invalid solely because the trial court failed to inform a defendant of all of the constitutional rights pursuant to Boykin v. Alabama (395 US 238 [1969]) that were being forfeited as a result of the plea (see People v. Pellegrino, 26 NY3d 1063 [2015]). Here, the record establishes that defendant was aware that he was waiving his right to have a trial, his right to confront and cross-examine all witnesses against him, his right to testify or remain silent, and his right to have the prosecutor prove the case against him beyond a reasonable doubt. The record further demonstrates that defendant entered into the plea freely and voluntarily, with the benefit of his counsel’s guidance, that no one had forced him to do so, that he understood that pleading guilty to a misdemeanor would add to his criminal record, and that he was pleading guilty because he was, in fact, guilty. Despite defendant’s contention to the contrary, a factual basis for a plea is not a constitutional requirement (see People v. Darling, 125 AD3d 1279 [2015]; People v. Winbush, 199 AD2d 447 [1993]) and, thus, a defendant can plead guilty to a crime “for which there is no factual basis and even plead guilty to a hypothetical crime” (People v. Keizer, 100 NY2d 114, 118 n 2 [2003], citing People v. Francis, 38 NY2d 150 [1975]). Consequently, a plea of guilty will be sustained even in the complete absence of a factual recitation of the underlying circumstances of the offense where the defendant otherwise understood the nature of the charges and entered the plea voluntarily, as is demonstrated by the record herein (see Winbush, 199 AD2d at 448; People v. Lowe, 149 AD2d 939 [1989]; People v. Richardson, 114 AD2d 980 [1985]; People v. Nance, 110 AD2d 857 [1985]). Moreover, here, because nothing that defendant said or failed to say in his allocution negated any element of the offense to which he pleaded guilty or otherwise called into question his admitted guilt or the voluntariness of his plea, and the court established that defendant understood that he was pleading guilty to assault in the third degree, there is no basis provided by defendant on appeal to vacate the plea (see People v. Seeber, 4 NY3d 780 [2005]). Therefore, the totality of the circumstances establishes a knowing, intelligent and voluntary plea (see People v. Sosa, 28 NY3d 965, 966 [2016]; Conceicao, 26 NY3d at 384). Accordingly, the judgment of conviction is affirmed. WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur. May 7, 2021
