People v. Borden, 91 A.D.3d 1124 (N.Y. App. Div. 3d Dep't 2012). · Go Syfert
People v. Borden, 91 A.D.3d 1124 (N.Y. App. Div. 3d Dep't 2012). Cases Citing This Book View Copy Cite
32 citation events (32 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2012 → 2026 · click a year to view as-of
2012 2019 2026
Cited for
At page 1125 Determining waiver validity and preserving pleas challenges19 citing casesInitially, we agree with defendant that his waiver of the right to appeal was invalid. Only a passing reference was made to the waiver prior to defendant…opening of page *1125 (no citing court says what it cites this page for) · 12 listed here
  • People v. Williams, 189 A.D.3d 1978 (N.Y. App. Div. 3d Dep't 2020).published
    Despite surviving his guilty plea and valid appeal waiver ( see People v Seaberg , 74 NY2d 1, 9 [1989]; People v La Brosse , 7 AD3d 924, 924 [2004], lv denied 3 NY3d 642 [2004]), such argument is not preserved for our review, as defendant…
  • People v. Callender, 2018 NY Slip Op 5638 (N.Y. App. Div. 3d Dep't 2018).published
    "Only a passing reference was made to the waiver prior to defendant pleading guilty, and at no time during the plea colloquy did County Court explain either the nature of the waiver or the separate and distinct rights being forfeited there…
  • People v. Hilts, 2018 NY Slip Op 353 (N.Y. App. Div. 3d Dep't 2018).published
    Although defendant's arguments on these points survive his uncontested waiver of the right to appeal, such claims are unpreserved for our review absent record evidence of an appropriate postallocution motion ( see People v Duffy , 126 AD3d…
  • People v. Davis, 150 A.D.3d 1396 (N.Y. App. Div. 3d Dep't 2017).published
    Further, the narrow exception to the preservation rule is not applicable here, insofar as defendant did not make any statements during the plea colloquy that cast doubt on her guilt or otherwise called into question the voluntariness of he…
  • PeoplevHarris, No. 105745 (N.Y. App. Div. 3d Dep't Oct. 30, 2014).published
    Nor did the written waiver of appeal that defendant executed advise defendant, in any manner, of the waiver's legal implications, thereby rendering the waiver invalid (see People v Borden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 […
  • People v. Harris, 121 A.D.3d 1423 (N.Y. App. Div. 3d Dep't 2014).published 2 cites
    Nor did the written waiver of appeal that defendant executed advise defendant, in any manner, of the waiver’s legal implications, thereby rendering the waiver invalid (see People v Borden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 […
  • People v. Chavis, 117 A.D.3d 1193 (N.Y. App. Div. 3d Dep't 2014).published 2 cites
    While defendant’s further claims—that he was not mentally competent to enter a plea and that his counsel was ineffective for failing to request a competency hearing—survive his appeal waiver because they impact the voluntariness of his ple…
  • People v. Hasenflue, 110 A.D.3d 1108 (N.Y. App. Div. 3d Dep't 2013).published 2 cites
    Initially, the record does not reflect that defendant preserved his challenge to the voluntariness and factual sufficiency of his plea by making a motion to withdraw his plea or vacate the judgment of conviction (see People v Borden, 91 AD…
  • People v. Madison, 104 A.D.3d 1025 (N.Y. App. Div. 3d Dep't 2013).published 2 cites
    Defendant’s argument that his plea was not knowing and voluntary due to his compromised mental and physical health is not preserved inasmuch as the record before us contains no evidence that he made a motion to withdraw his plea or vacate…
  • People v. Williams, 102 A.D.3d 1055 (N.Y. App. Div. 3d Dep't 2013).published 2 cites
    Under these circumstances, this record does not provide us with a sufficient basis for concluding that the waiver was knowing, voluntary and intelligent (see People v Bradshaw, 18 NY3d 257, 265 [2011] ; People v Burton, 93 AD3d 949, 949 [2…
Show 2 more citing cases
  • People v. Palmer, 100 A.D.3d 1101 (N.Y. App. Div. 3d Dep't 2012).published 2 cites
    Although defendant apparently signed a written waiver of the right to appeal on the date of his plea, there was no discussion or inquiry by Supreme Court as to such waiver in either the plea or sentencing minutes (see People v Bradshaw, 18…
  • People v. Kime, 95 A.D.3d 1562 (N.Y. App. Div. 3d Dep't 2012).published 2 cites
    In the circumstances presented, the waiver of appeal does not preclude this challenge (see People v Borden, 91 AD3d 1124, 1125 [2012]; People v Middleton, 72 AD3d 1336, 1337 [2010]).
At page 1126 Determining plea voluntariness when sentencing promises are alleged6 citing cases“when a defendant's guilty plea has been induced by a sentencing promise that the court later determines is inappropriate or illegal, that court must afford the defendant the opportunity to withdraw the plea or honor the plea-inducing promise”the opinion's own words at *1126, quoted by 1 later opinions · 5 listed here
  • People v. Harrigan, 239 A.D.3d 1153 (N.Y. App. Div. 3d Dep't 2025).published 2 cites
    However, "when a defendant's guilty plea has been induced by a sentencing promise that the court later determines is inappropriate or illegal, that court must afford the defendant the opportunity to withdraw the plea or honor the plea-indu…
  • People v. Phillip, 200 A.D.3d 1108 (N.Y. App. Div. 3d Dep't 2021).published
    Initially, defendant's argument that his plea was involuntary because he was not informed of his possible sentencing exposure is unpreserved, as "defendant did not raise it in his motion to withdraw his guilty plea" ( People v Williams , 1…
  • People v. Barrales, 179 A.D.3d 1313 (N.Y. App. Div. 3d Dep't 2020).published
    Defendant challenges the voluntariness of her pleas, but her apparent "failure to make a motion to withdraw [her] plea or vacate the judgment renders this issue unpreserved for review" ( People v Lopez , 51 AD3d 1210, 1211 [2008]; see Peop…
  • PeoplevSmith, No. 105233 (N.Y. App. Div. 3d Dep't Oct. 2, 2014).published
    Defendant made no statements during the plea colloquy that would bring this case within the narrow exception to the preservation rule, and we perceive no reason "to take corrective action as a matter of discretion in the interest of justic…
  • People v. Smith, 121 A.D.3d 1131 (N.Y. App. Div. 3d Dep't 2014).published 2 cites
    Defendant made no statements during the plea colloquy that would bring this case within the narrow exception to the preservation rule, and we perceive no reason “to take corrective action as a matter of discretion in the interest of justic…
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Travis K. Borden
Appellate Division of the Supreme Court of the State of New York.
Jan 19, 2012.
Published opinion
91 A.D.3d 1124
Egan.
Cited by 26 opinions  |  Published
Egan Jr., J.

[*1125] Initially, we agree with defendant that his waiver of the right to appeal was invalid. Only a passing reference was made to the waiver prior to defendant pleading guilty, and at no time during the plea colloquy did County Court explain either the nature of the waiver or the separate and distinct rights being forfeited thereby (see People v Klages, 90 AD3d 1149, 1150 [2011]; People v Mosher, 79 AD3d 1272, 1273 [2010], lv denied 16 NY3d 834 [2011]; cf. People v Headspeth, 78 AD3d 1418, 1419 [2010]). Further, although defendant executed a written waiver of appeal— after his plea was accepted and outside of court — there is no indication on the record that defendant discussed this issue with counsel or otherwise understood the right that he was waiving (cf. People v Williams, 76 AD3d 1141,1142 [2010]; People v Middleton, 72 AD3d 1336, .1337 [2010]). Under these circumstances, we cannot conclude that defendant’s waiver was knowing, intelligent and voluntary (see People v Riddick, 40 AD3d 1259, 1259-1260 [2007], lv denied 9 NY3d 925 [2007]; compare People v McDuffie, 89 AD3d 1154, 1156 [2011]).

As to defendant’s remaining arguments, his challenge to the voluntariness and factual sufficiency of his plea, as well as his claim that County Court erred in failing to conduct a competency hearing prior to accepting his plea, are not preserved for our review in light of his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Klages, 90 AD3d at 1150; People v Jones, 88 AD3d 1029 [2011]; People v Davis, 84 AD3d 1645,1645 [2011], lv denied 17 NY3d 815 [2011]; People v Budwick, 82 AD3d 1447, 1448 [2011], lv denied 17 NY3d 857 [2011]; People v Coons, 73 AD3d 1343, 1344 [2010], lv denied 15 NY3d 803 [2010]). Moreover, the narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during the plea colloquy — “which included an inquiry into the nature of defendant’s mental [health issues], the medications [he] was taking and [his] ability to comprehend the proceedings” (People v Stoddard, 67 AD3d 1055, 1056 [2009],. lv denied 14 NY3d 806 [2010]) — that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v Board, 75 AD3d 833, 833 [2010]; People v Lopez, 74 AD3d 1498, 1499 [2010]). Defend[*1126]ant’s related claim that he was denied the effective assistance of counsel also is unpreserved for our review (see People v Macduff, 83 AD3d 1292, 1292-1293 [2011]; People v Fiske, 68 AD3d 1149, 1150 [2009], lv denied 14 NY3d 800 [2010]).

Defendant next contends that his plea was induced by what turned out to be the People’s illegal sentencing recommendation[1] and, therefore, the plea should have been vacated in its entirety or, alternatively, he should have been permitted to withdraw his plea. As to this latter claim, we need note only that defendant never asked to withdraw his plea upon this or any other ground. To the extent that defendant argues that the erroneous sentencing recommendation bears upon the voluntariness of his plea, this argument is unpreserved for our review and, in our view, reversal in the interest of justice is unwarranted (see People v Lopez, 51 AD3d 1210, 1210-1211 [2008]).

To be sure, “when a defendant’s guilty plea has been induced by a sentencing promise which the court later determines is inappropriate [or illegal], that court must afford the defendant the opportunity to withdraw the plea or honor the plea-inducing promise” (People v Martin, 17 AD3d 775, 776 [2005]). Here, the People agreed that they would make a specific sentencing recommendation and did so. County Court, however, made no such commitment. Rather, County Court carefully delineated the full range of sentencing options at its disposal (including sentencing defendant to the maximum prison term that he ultimately received), cautioned defendant that the People’s sentencing recommendation was simply that — a recommendation — and repeatedly made clear that it was not making any promise or commitment as to sentencing (see People v Lopez, 51 AD3d at 1211; compare People v Martin, 17 AD3d at 776). Notwithstanding County Court’s admonitions,[2] defendant nonetheless elected to plead guilty. Under these circumstances, we discern no need to vacate defendant’s plea.

Defendant’s remaining contentions, including his claim that the sentence imposed was harsh and excessive, have been examined and found to be lacking in merit.

Peters, J.E, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.

1

The People agreed to (and did in fact) recommend a sentence of five years of probation, but the minimum term of probation for a felony sexual assault is 10 years (see Penal Law § 60.01 [2] [a] [i]; § 65.00 [3] [a] [iii]).

2

Notably, prior to accepting defendant’s plea, County Court stated, “I just want you to really know for sure that I’m not promising you that you won’t get locked up. I’m not promising. I’m letting you know that it could be state prison ... If you enter a guilty plea, it’s without any assurance about what your sentence would be.”