People v. Tausinger, 21 A.D.3d 1181 (N.Y. App. Div. 2005). · Go Syfert
People v. Tausinger, 21 A.D.3d 1181 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
22 citation events (22 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Jones (nyappdiv, 2024-12-12)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Jones
N.Y. App. Div. · 2024 · confidence medium
Initially, our review of defendant's contention is not precluded by his unchallenged appeal waiver, inasmuch as conditions have changed since defendant entered his plea ( see People v Gray , 32 AD3d 1052 , 1053 [3d Dept 2006], lv denied 7 NY3d 902 [2006]; People v Tausinger , 21 AD3d 1181, 1183 [3d Dept 2005]).
discussed Cited as authority (rule) People v. Jirdon
N.Y. App. Div. · 2018 · confidence medium
Where, as here, the sentencing conditions under which a defendant agrees to waive the right to appeal change following the waiver, the defendant is not precluded by that waiver from challenging the severity of a subsequent resentence ( see People v Gray , 32 AD3d 1052 , 1053 [3d Dept 2006], lv denied 7 NY3d 902 [2006]; People v Tausinger , 21 AD3d 1181, 1183 [3d Dept 2005]; see also People v Allen , 97 AD3d 1164, 1164 [4th Dept 2012], lv denied 19 NY3d 994 [2012]).
discussed Cited as authority (rule) People v. White
N.Y. App. Div. · 2016 · confidence medium
The cases cited by defendant are inapposite, as they involve waivers of the right to appeal that either were followed by a resentence under conditions unknown at the time of the guilty plea and original sentence (People v Tausinger, 21 AD3d 1181, 1183 [3d Dept 2005]), or were found on appeal not to have been knowing, voluntary and intelligent (People v Flores, 134 AD3d 425 [1st Dept 2015]).
discussed Cited as authority (rule) People v. Allen
N.Y. App. Div. · 2012 · confidence medium
Although defendant validly waived the right to appeal at the plea proceeding (see generally People v Lopez, 6 NY3d 248, 256 [2006]), that waiver does not preclude him from challenging the sentence imposed upon resentencing (see People v Gray, 32 AD3d 1052, 1053 [2006], lv denied 7 NY3d 902 [2006]; People v Tausinger, 21 AD3d 1181, 1183 [2005]; see generally People v Dexter, 71 AD3d 1504, 1504-1505 [2010], lv denied 14 NY3d 887 [2010]; People v Rodriguez, 259 AD2d 1040 [1999]).
discussed Cited as authority (rule) People v. Allen
N.Y. App. Div. · 2012 · confidence medium
Although defendant validly waived the right to appeal at the plea proceeding (see generally People v Lopez, 6 NY3d 248, 256 [2006]), that waiver does not preclude him from challenging the sentence imposed upon resentencing (see People v Gray, 32 AD3d 1052, 1053 [2006], lv denied 7 NY3d 902 [2006]; People v Tausinger, 21 AD3d 1181, 1183 [2005]; see generally People v Dexter, 71 AD3d 1504, 1504-1505 [2010], lv denied 14 NY3d 887 [2010]; People v Rodriguez, 259 AD2d 1040 [1999]).
discussed Cited as authority (rule) People v. Vaughns
N.Y. App. Div. · 2010 · confidence medium
While he is not precluded from challenging his resentence (see People v Rowland, 11 AD3d 825, 825-826 [2004]), we note that defendant consented to being resentenced after refusing County Court’s offer to withdraw his plea (see People v Tausinger, 21 AD3d 1181, 1183 [2005]).
discussed Cited as authority (rule) People v. Sofia
N.Y. App. Div. · 2009 · confidence medium
It is true, of course, that an appeal waiver executed in con- nection with a guilty plea does not preclude a challenge to the severity of a subsequent resentence if the plea was entered “under conditions that changed following the waiver” (People v Tausinger, 21 AD3d 1181, 1183 [2005]; see People v Gray, 32 AD3d 1052, 1053 [2006], lv denied 7 NY3d 902 [2006]).
discussed Cited as authority (rule) People v. Squitieri
N.Y. App. Div. · 2009 · confidence medium
Defendant elected not to withdraw his plea and stated his continued satisfaction with the plea agreement prior to resentencing and, as a result, no ground for reversal exists (see People v Tausinger, 21 AD3d 1181, 1183 [2005]; People v Tubbs, 157 AD2d 915, 916 [1990], lv denied 76 NY2d 744 [1990]).
discussed Cited as authority (rule) People v. Rock
N.Y. App. Div. · 2008 · confidence medium
However, those arguments are unpreserved because he did not move to withdraw his plea or vacate the judgment of conviction (see People v Lopez, 33 AD3d 1062 , 1062 [2006], lv denied 8 NY3d 847 [2007]; People v Tausinger, 21 AD3d 1181, 1182 [2005]).
discussed Cited as authority (rule) People v. Sinclair
N.Y. App. Div. · 2008 · confidence medium
Defendant’s challenge to the factual sufficiency of the plea allocution is foreclosed by his valid waiver of the right to appeal, as well as his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Missimer, 32 AD3d 1114, 1115 [2006], lv denied 7 NY3d 927 [2006]; People v Tausinger, 21 AD3d 1181,1182 [2005]; People v Briggs, 21 AD3d 652, 653 [2005], lv denied 5 NY3d 881 [2005]).
discussed Cited as authority (rule) People v. Matthie (2×)
N.Y. App. Div. · 2006 · confidence medium
Inasmuch as the plea colloquy establishes that defendant’s Alford plea was “the product of a voluntary and rational choice, and the record before the court contain[ed] strong evidence of actual guilt,” we cannot say that County Court abused its discretion in denying his motion to vacate the plea (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]; see People v Kyzer, 21 AD3d 1212, 1213-1214 [2005]; People v Tausinger, 21 AD3d 1181, 1182-1183 [2005]; People v Stewart, 307 AD2d 533, 534 [2003]).
discussed Cited as authority (rule) People v. Lopez
N.Y. App. Div. · 2006 · confidence medium
By virtue of his failure to move to withdraw his plea or vacate his conviction, defendant failed to preserve for our review his arguments that the record does not contain sufficient proof of guilt to support his Alford plea, his plea was involuntary and his counsel was ineffective (see People v Tausinger, 21 AD3d 1181, 1182 [2005]; People v Sales, 18 AD3d 962, 962, 963 [2005]).
discussed Cited as authority (rule) People v. Missimer
N.Y. App. Div. · 2006 · confidence medium
Moreover, defendant’s attack on the factual sufficiency of the plea allocution is foreclosed by both his valid appeal waiver and failure to move to withdraw the plea or vacate the judgment of conviction (see People v Tausinger, 21 AD3d 1181, 1182 [2005]; People v Bethea, 19 AD3d 813, 814 [2005]).
discussed Cited as authority (rule) People v. Turner
N.Y. App. Div. · 2006 · confidence medium
Furthermore, a challenge to the factual sufficiency of a plea allocution is foreclosed by defendant’s appeal waiver (see People v Nesbitt, supra; People v Tausinger, 21 AD3d 1181, 1182 [2005]; People v Bethea, 19 AD3d 813, 814 [2005]; People v Threatt, 16 AD3d 706, 707 [2005]).
discussed Cited as authority (rule) People v. Simmons
N.Y. App. Div. · 2006 · confidence medium
Additionally, defendant’s challenges to the sufficiency of his plea allocution are unpreserved and also precluded by his valid waiver of appeal (see People v Nesbitt, supra at 837; People v Tausinger, 21 AD3d 1181, 1182 [2005]; People v Bethea, 19 AD3d 813, 814 [2005]).
discussed Cited as authority (rule) People v. Van Bramer
N.Y. App. Div. · 2006 · confidence medium
Defendant’s challenge to the factual sufficiency of his plea is unpreserved and is precluded by the valid and enforceable waiver of his right to appeal (see People v Nesbitt, 23 AD3d 836, 837 [2005]; People v Tausinger, 21 AD3d 1181, 1182 [2005]; People v Bethea, 19 AD3d 813, 814 [2005]; People v Threatt, 16 AD3d 706, 707 [2005]).
discussed Cited as authority (rule) People v. Feller
N.Y. App. Div. · 2006 · confidence medium
Defendant’s challenge to the factual sufficiency of the plea allocution is foreclosed by his voluntary waiver of the right to appeal, and is unpreserved due to his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Tausinger, 21 AD3d 1181, 1182 [2005]; People v Briggs, 21 AD3d 652, 653 [2005]; People v Wehrle, 308 AD2d 660, 661 [2003]).
discussed Cited "see" People v. Crandall
N.Y. App. Div. · 2020 · signal: see · confidence high
Notably, in the context of an Alford plea, "defendant was not required to . . . admit his participation in the acts constituting the crime" to which he pleaded guilty ( People v Green , 249 AD2d 691, 693 [1998]; see People v Tausinger , 21 AD3d 1181, 1182 [2005]).
discussed Cited "see" People v. Sumter
N.Y. App. Div. · 2019 · signal: see · confidence high
Accordingly, the waiver does not preclude our review of defendant's appeal on resentencing because "the plea was entered pursuant to conditions that changed after defendant's waiver" ( People v Varnum , 291 AD2d 724, 725 [2002]; see People v Tausinger , 21 AD3d 1181, 1183 [2005]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
William R. Tausinger
Appellate Division of the Supreme Court of the State of New York.
Sep 22, 2005.
21 A.D.3d 1181
Peters.
Cited by 21 opinions  |  Published
Peters, J.

Appeal from a judgment of the County Court of Warren County (Austin, J.), rendered October 30, 2002, convicting defendant upon his plea of guilty of the crimes of arson in the third degree and criminal possession of a weapon in the third degree.

Defendant was charged with several crimes after he set fire to his estranged wife’s home in the Town of Bolton, Warren County, and was found to be in unlawful possession of a handgun. Pursuant to a negotiated plea agreement, defendant entered an Alford plea to the crimes of arson in the third degree and criminal possession of a weapon in the third degree, waiving his right to appeal. He was then sentenced to agreed-upon concurrent prison terms of 2 to 6 years on the arson count and three years on the possession count. Thereafter, County Court determined that the three-year sentence for the possession count was illegal and resentenced defendant without objection to 1 to 3 years in prison, to run concurrently with the other sentence. Defendant now appeals.

While not encompassed by his general appeal waiver, defendant’s challenge to the voluntariness of his plea is unpreserved for our review given his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Santalucia, 19 AD3d 806, 807 [2005]; People v Mondore, 18 AD3d 961, 961 [2005]). Likewise, defendant’s challenge to the factual sufficiency of the plea allocution is precluded by both his appeal waiver as well as his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Bethea, 19 AD3d 813, 814 [2005]; People v Dallio, 19 AD3d 717, 717 [2005]). Were we to consider these claims, we would find them to be unavailing.

Although defendant asserts that his plea to arson in the third degree was deficient insofar as he did not admit that he intentionally set fire to the home (see Penal Law § 150.10 [1]), it is not necessary that a defendant recite every essential element in connection with an Alford plea, and all that is required is a finding that the plea “represents a voluntary and intelligent choice among the alternative courses of action open” (North Carolina v Alford, 400 US 25, 31 [1970]; see Matter of Silmon v Travis, 95 NY2d 470, 474 n 1 [2000]; People v Green, 249 AD2d 691, 693 [1998]; People v Martinez, 243 AD2d 923, 924 [1997]). Here, County Court apprised defendant of the terms of the plea offer and the consequences of pleading guilty, including the rights that he was waiving. Defendant indicated that he understood and that he wished to enter an Alford plea to avoid the risk of a lengthier sentence if convicted after a trial. More[*1183] over, defendant confirmed that he was entering the plea voluntarily and that he had discussed the matter with his counsel and was satisfied with his representation. Under these circumstances, we find no reason to vacate the plea in the interest of justice (see People v Stewart, 307 AD2d 533, 534 [2003]; People v Ruger, 279 AD2d 795, 796-797 [2001], lv denied 96 NY2d 806 [2001]).

Next, although defendant’s waiver of his right to appeal does not preclude our review of his challenge to the resentencing inasmuch as he entered the plea under conditions that changed following the waiver (see People v Rowland, 11 AD3d 825, 825 [2004]; People v Varnum, 291 AD2d 724, 725 [2002]), the record reveals that defendant consented to the resentencing and received a favorable sentence that preserved the full benefit of the original plea bargain. As County Court had the inherent power to correct the illegal sentence under these circumstances (see People v Sheils, 288 AD2d 504, 505-506 [2001], lv denied 97 NY2d 733 [2002]), we discern no error. Moreover, we find no abuse of discretion or extraordinary circumstances to warrant a reduction in the resentence (see People v Vahedi, 19 AD3d 810, 811 [2005]).

Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.