# People v. Brown

> Appellate Division of the Supreme Court of the State of New York · June 30, 2017 · 151 A.D.3d 1951

URL: https://www.frixlaw.com/law-library/cases/4182808

## Case

- **Full name:** The People of the State of New York, Respondent, v. Erika Brown, Appellant
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** June 30, 2017
- **Citations:** 151 A.D.3d 1951; 59 N.Y.S.3d 227; 2017 NY Slip Op 5370
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Whalen, Carni, Lindley, Curran, Scudder
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4182808

## Opinion text

Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered June 15, 2016. The judgment convicted defendant, upon her plea of guilty, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and one count of criminal possession of a controlled substance in the third degree (§ 220.16 [1]). At the outset, we conclude that defendant knowingly, voluntarily and intelligently waived her right to appeal, and that waiver encompasses her challenge to the severity of the sentence
{see People v Lopez,
6 NY3d 248, 255-256 [2006]). The further contention of defendant that the sentence is illegal, however, survives her waiver of the right to appeal
(see People v Seaberg,
74 NY2d 1, 9 [1989];
People v Bussom,
125 AD3d 1331, 1331 [2015]). Nevertheless, contrary to defendant’s contention, we conclude that County Court imposed a legal sentence.
To the extent that defendant contends that the plea was not knowing, voluntary and intelligent because the court failed to conduct a sufficient inquiry to determine whether she understood the consequences of the plea, that contention also
*1952
survives her valid waiver of the right to appeal
(see People v Green,
122 AD3d 1342, 1343 [2014];
People v Povoski,
78 AD3d 1533, 1533 [2010],
lv denied
16 NY3d 799 [2011]). Defendant’s contention, however, is not preserved for our review because she did not move to withdraw the plea or to vacate the judgment of conviction on that ground
(see People v Hough,
148 AD3d 1671, 1671 [2017];
People v Brinson,
130 AD3d 1493, 1493 [2015],
lv denied
26 NY3d 965 [2015]). We conclude in any event that defendant’s contention is “belied by [her] statements during the plea colloquy”
(People v Rickard,
262 AD2d 1073, 1073 [1999],
lv denied
94 NY2d 828 [1999];
see People v Hampton,
142 AD3d 1305, 1306-1307 [2016],
lv denied
28 NY3d 1124 [2016];
People v Caldwell,
78 AD3d 1562, 1563 [2010],
lv denied
16 NY3d 796 [2011]). The record reveals that an interpreter was present throughout the plea proceeding, and defendant “acknowledged, through the interpreter, that [she] understood the terms of the plea bargain and that [she] willingly accepted them”
(People v Mercedes,
171 AD2d 1044, 1044 [1991],
lv denied
77 NY2d 998 [1991];
see People v Martes,
154 AD2d 946 , 946 [1989],
lv denied
75 NY2d 870 [1990];
People v Quezada,
145 AD2d 950, 951 [1988]).
Present — Whalen, P.J., Carni, Lindley, Curran and Scudder, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4182808. Public record. Not legal advice.