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

316
KA 10-01030
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LATASHA D. BRIGGS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Stephen T.
Miller, A.J.), rendered March 19, 2010. The judgment convicted
defendant, upon her plea of guilty, of criminal possession of a
controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting her upon her
plea of guilty of criminal possession of a controlled substance in the
third degree (Penal Law § 220.16 [1]), defendant contends that her
plea was not knowingly, voluntarily, and intelligently entered.
According to defendant, her equivocal responses during the plea
colloquy negated her intent to sell, which is an essential element of
the crime to which she pleaded guilty, and the court failed to conduct
the requisite further inquiry to ensure that the plea was knowing,
voluntary and intelligent. We note at the outset that defendant’s
waiver of the right to appeal is invalid and thus does not encompass
her contention (see People v McCoy, 107 AD3d 1454, 1454-1455, lv
denied 22 NY3d 957). Although the record establishes that defendant
executed a written waiver and County Court ensured that defendant had
signed that written waiver voluntarily, the court’s “failure to make
any inquiry on the record as to whether the defendant understood the
implication of the appellate rights [s]he was waiving renders the
waiver invalid” (People v Grant, 83 AD3d 862, 862-863, lv denied 17
NY3d 795; see McCoy, 107 AD3d at 1454; see generally People v
Bradshaw, 18 NY3d 257, 264-267). Nevertheless, defendant failed to
preserve her contention for our review by moving to withdraw the plea
or to vacate the judgment of conviction (see People v Theall, 109 AD3d
1107, 1108). This case does not fall within the rare exception to the
preservation rule set forth in People v Lopez (71 NY2d 662, 666)
because, “ ‘[a]lthough the initial statements of defendant during the
                                 -2-                           316
                                                         KA 10-01030

factual allocution may have negated the essential element of h[er]
intent to [sell], h[er] further statements removed any doubt regarding
that intent’ ” (Theall, 109 AD3d at 1108). In any event, the record
establishes that the court conducted a “ ‘further inquiry to ensure
that defendant understood the nature of the charge and that the plea
was intelligently entered’ ” (id.).




Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
