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

291
KA 13-00828
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSE GARCIA-CRUZ, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered May 23, 2012. The judgment convicted defendant,
upon his plea of guilty, of burglary in the first degree.

     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 burglary in the first degree (Penal Law
§ 140.30 [3]). We agree with defendant that the waiver of the right
to appeal is invalid because “the minimal inquiry made by County Court
was insufficient to establish that the court engage[d] the defendant
in an adequate colloquy to ensure that the waiver of the right to
appeal was a knowing and voluntary choice” (People v Jones, 107 AD3d
1589, 1589, lv denied 21 NY3d 1075 [internal quotation marks omitted];
see People v Amir W., 107 AD3d 1639, 1640), and because “there is no
basis upon which to conclude that the court ensured ‘that the
defendant understood that the right to appeal is separate and distinct
from those rights automatically forfeited upon a plea of guilty’ ”
(Jones, 107 AD3d at 1590, quoting People v Lopez, 6 NY3d 248, 256).
We nevertheless reject defendant’s challenge to the severity of the
sentence.

     Defendant contends that he was denied his due process right to an
interpreter at some proceedings, requiring reversal of the conviction.
Upon our review of the record, we conclude that defendant, who was
represented by counsel, failed to preserve his contention for our
review because he never objected to the absence of an interpreter (see
People v Robles, 86 NY2d 763, 764-765; People v Rivera, 15 AD3d 859,
860, lv denied 4 NY3d 856). In any event, we conclude that there was
only one preliminary court appearance during which an interpreter may
not have been present, and defendant’s presence at that appearance was
                                 -2-                           291
                                                         KA 13-00828

not required (see generally People v Dokes, 79 NY2d 656, 660).   Thus,
any translation for his benefit would have been unnecessary.

     By failing to move to withdraw the plea or to vacate the judgment
of conviction, defendant failed to preserve for our review his
contention that the plea was not voluntarily entered (see People v
Connolly, 70 AD3d 1510, 1511, lv denied 14 NY3d 886). This case does
not fall within the rare exception to the preservation requirement set
forth in People v Lopez (71 NY2d 662, 666) “because nothing in the
plea allocution calls into question the voluntariness of the plea or
casts ‘significant doubt’ upon his guilt” (People v Pitcher, 126 AD3d
1471, 1472, lv denied 25 NY3d 1169, quoting Lopez, 71 NY2d at 666).
The statements made by defendant during his presentence interview and
at sentencing regarding his possible intoxication during the offense
did not require the court to conduct an inquiry regarding the
voluntariness of the plea (see People v Arney, 120 AD3d 949, 950;
Connolly, 70 AD3d at 1511; People v Kelly, 50 AD3d 921, 921, lv denied
10 NY3d 960). Further, although defendant’s contention that the plea
should be vacated because the court misstated the minimum period of
postrelease supervision during the plea colloquy does not require
preservation (see People v Brooks, 128 AD3d 1467, 1468), we conclude
that the misstatement did not render the plea involuntary (see People
v Garcia, 92 NY2d 869, 870-871; cf. Brooks, 128 AD3d at 1468).




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
