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