Alford plea in New York

2025Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [7]), defendant contends that County Court erred in accepting his Alford plea ( see North Carolina v Alford , 400 US 25 [1970]) because the record lacks the requisite strong evidence of his actual guilt ( see generally Matter of Silmon v Travis , 95 NY2d 470, 475 [2000]).

2024"An Alford plea, wherein the accused is permitted to enter a guilty plea without admitting culpability, may be allowed only where such plea 'is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt.' " People v Vittengl , 203 AD3d 1390 [3d Dept 2022], citing, People v. Stewart , 307 AD2d 533, 534 , 763 N.Y.S.2d 688 [2003], quoting, Matter of Silmon v. Travis , 95 NY2d 470, 475 , 718 N.Y.S.2d 704 , 741 N.E.2d 501 [2000] [citation omitted].

2022Although defendant's challenge to the factual sufficiency of his Alford plea is not precluded given the invalid appeal waiver, [FN1] we nevertheless conclude that defendant's contention is not preserved for our review, as he did not move to withdraw his plea or to vacate the judgment of conviction ( see People v Elawar , 204 AD3d 1247, 1248-1249 [3d Dept 2022], lv denied 38 NY3d 1133 [2022]; People v Morehouse , 140 AD3d 1202, 1203 [3d Dept 2016], lv denied 28 NY3d 934 [2016]; People v Ture , 94 AD3d 1163, 1164 [3d Dept 2012], lv denied 19 NY3d 968 [2012]; People v Hinckley , 50 AD3d 1466, 146

2018Even assuming, arguendo, that defendant's challenges to his Alford plea survive his valid waiver of appeal, we conclude that those challenges are unpreserved for our review because defendant failed to raise them as part of a motion to withdraw his plea or to vacate the judgment of conviction ( see People v Miller , 87 AD3d 1303 , 1303-1304 [4th Dept 2011], lv denied 18 NY3d 926 [2012]; People v Sherman , 8 AD3d 1026, 1026 [4th Dept 2004], lv denied 3 NY3d 681 [2004]), and this case does not fall within the narrow exception to the preservation requirement ( see People v Lopez , 71 NY2d 662, 666

2025Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [7]), defendant contends that County Court erred in accepting his Alford plea ( see North Carolina v Alford , 400 US 25 [1970]) because the record lacks the requisite strong evidence of his actual guilt ( see generally Matter of Silmon v Travis , 95 NY2d 470, 475 [2000]).

2024On February 16, 2000, the defendant, upon his Alford plea ( see North Carolina v Alford , 400 US 25 ), was convicted in the County Court, Nassau County, of one count of rape in the first degree, two counts of sodomy in the first degree, and one count of attempted sodomy in the first degree for the sexual assaults he committed in Nassau County ( see People v Philips , 30 AD3d 620, 620 ).

2024Initially, defendant's contention that County Court erred in accepting his Alford plea because the record does not contain the requisite strong evidence of his guilt to support his plea is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, and the narrow exception to the preservation rule is not implicated ( see People v Heidgen , 22 NY3d 981, 981-982 [2013]; People v Crandall , 181 AD3d 1091, 1092-1093 [3d Dept 2020], lv denied 35 NY3d 1026 [2020]; People v Mickel , 157 AD3d 1140 , 1141 [3d Dept 2018], lv denied 31 NY3d 1015 [2018]; Pe

2022"An Alford plea, wherein the accused is permitted to enter a guilty plea without admitting culpability, may be allowed only where such plea 'is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt'" ( People v Stewart , 307 AD2d 533, 534 [2003], quoting Matter of Silmon v Travis , 95 NY2d 470, 475 [2000] [citation omitted]; see People v Ture , 94 AD3d 1163, 1164 [2012], lv denied 19 NY3d 968 [2012]; People v Washington , 51 AD3d 1223, 1223-1224 [2008]).

2022To the extent that defendant contends that County Court erred in accepting his plea because the record lacked the " 'strong evidence of actual guilt' " that would be required for an Alford plea ( People v Elliott , 107 AD3d 1466 , 1466 [4th Dept 2013], lv denied 22 NY3d 996 [2013]), we conclude that defendant's contention is misplaced inasmuch as he did not enter an Alford plea ( see People v Gale , 130 AD2d 588 , 588 [2d Dept 1987]).

2021In any event, we conclude that "the record establishes that defendant's Alford plea was the product of a voluntary and rational choice, and the record . . . contains strong evidence of actual guilt" ( Elliott , 107 AD3d at 1466 [internal quotation marks omitted]).

2021With respect to defendant's contention that County Court erred in accepting his Alford plea because the record does not contain the requisite strong evidence of guilt or establish that the plea was the product of a voluntary and rational choice, we note that defendant's contention would survive even a valid waiver of the right to appeal to the extent that it implicates the voluntariness of the plea ( see People v Dash , 74 AD3d 1859, 1860 [4th Dept 2010], lv denied 15 NY3d 892 [2010]; People v Dille , 21 AD3d 1298 , 1298 [4th Dept 2005], lv denied 5 NY3d 882 [2005]).

2014Contrary to defendant’s contention, this case does not fall within the narrow exception to the preservation requirement set forth in People v Lopez ( 71 NY2d 662, 666 [1988]) and, in any event, we conclude that the record establishes that defendant’s Alford plea was “the product of a voluntary and rational choice,” and that the record “contains strong evidence of actual guilt” (People v Dash, 74 AD3d 1859, 1860 [2010], lv denied 15 NY3d 892 [2010] [internal quotation marks omitted]; see People v Cruz, 89 AD3d 1464 , 1465 [2011], lv denied 18 NY3d 993 [2012]).

2017Here, the record establishes that “defendant’s Alford plea was ‘the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt’ ” (People v Smith, 26 AD3d 746, 747 [2006], lv denied 7 NY3d 763 [2006]).

2017Here, the record establishes that “defendant’s Alford plea was ‘the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt’ ” (People v Smith, 26 AD3d 746, 747 [2006], lv denied 7 NY3d 763 [2006]).

2024"An Alford plea, wherein the accused is permitted to enter a guilty plea without admitting culpability, may be allowed only where such plea 'is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt.' " People v Vittengl , 203 AD3d 1390 [3d Dept 2022], citing, People v. Stewart , 307 AD2d 533, 534 , 763 N.Y.S.2d 688 [2003], quoting, Matter of Silmon v. Travis , 95 NY2d 470, 475 , 718 N.Y.S.2d 704 , 741 N.E.2d 501 [2000] [citation omitted].

2024"An Alford plea, wherein the accused is permitted to enter a guilty plea without admitting culpability, may be allowed only where such plea 'is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt.' " People v Vittengl , 203 AD3d 1390 [3d Dept 2022], citing, People v. Stewart , 307 AD2d 533, 534 , 763 N.Y.S.2d 688 [2003], quoting, Matter of Silmon v. Travis , 95 NY2d 470, 475 , 718 N.Y.S.2d 704 , 741 N.E.2d 501 [2000] [citation omitted].

2018Although defendant made a knowing and voluntary choice to enter an Alford plea, we conclude that the court erred in accepting his plea because the record does not contain the requisite "strong evidence of actual guilt" ( Silmon , 95 NY2d at 475 ; see Richardson , 72 AD3d at 1580 ; People v Oberdorf , 5 AD3d 1000, 1001 [4th Dept 2004]).

2014Our review of the record reveals a nonfrivolous issue regarding the validity of defendant’s plea, i.e., whether there was sufficient evidence of guilt in the record to support the Alford plea (see People v Richardson, 72 AD3d 1578, 1579-1580 [2010]; People v Oberdorf, 5 AD3d 1000, 1001 [2004]).

2022Footnotes Footnote 1: To the extent that defendant's claim regarding his Alford plea implicates the voluntariness of his plea, we note that such a claim would survive even a valid appeal waiver ( see People v Fallen , 106 AD3d 1118 , 1119 [3d Dept 2013], lv denied 22 NY3d 1156 [2014]; People v Ebert , 15 AD3d 781, 782 [3d Dept 2005]).

2013In any event, the record establishes “that the Alford plea represented an intelligent and voluntary choice [by] defendant given the alternatives and that the information considered by County Court” provided an ample basis from which to conclude that defendant intended to cause the victim’s death (People v Ebert, 15 AD3d at 782 ; see People v Ture, 94 AD3d at 1164 ).

2018Even assuming, arguendo, that defendant's challenges to his Alford plea survive his valid waiver of appeal, we conclude that those challenges are unpreserved for our review because defendant failed to raise them as part of a motion to withdraw his plea or to vacate the judgment of conviction ( see People v Miller , 87 AD3d 1303 , 1303-1304 [4th Dept 2011], lv denied 18 NY3d 926 [2012]; People v Sherman , 8 AD3d 1026, 1026 [4th Dept 2004], lv denied 3 NY3d 681 [2004]), and this case does not fall within the narrow exception to the preservation requirement ( see People v Lopez , 71 NY2d 662, 666

2017Defendant’s further contention in appeal No. 1 that the court erred in accepting his Alford plea in the absence of “ ‘strong evidence of actual guilt’ ” in the record is not preserved for our review because he failed to move to withdraw his plea or to vacate the judgment of conviction (People v Elliott, 107 AD3d 1466, 1466 [2013], lv denied 22 NY3d 996 [2013]; see People v Heidgen, 22 NY3d 981, 981-982 [2013]; see also People v Sherman, 8 AD3d 1026, 1026 [2004], lv denied 3 NY3d 681 [2004]).

2024Initially, defendant's contention that County Court erred in accepting his Alford plea because the record does not contain the requisite strong evidence of his guilt to support his plea is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, and the narrow exception to the preservation rule is not implicated ( see People v Heidgen , 22 NY3d 981, 981-982 [2013]; People v Crandall , 181 AD3d 1091, 1092-1093 [3d Dept 2020], lv denied 35 NY3d 1026 [2020]; People v Mickel , 157 AD3d 1140 , 1141 [3d Dept 2018], lv denied 31 NY3d 1015 [2018]; Pe

2018Defendant's contention that County Court erred in accepting his Alford plea because the record does not contain strong evidence of his guilt survives his appeal waiver to the [*2]extent that it implicates the voluntariness of his plea, but is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, and the exception to the preservation rule is inapplicable ( see People v Heidgen , 22 NY3d 981, 981-982 [2013]; People v Hughes , 134 AD3d 1301, 1301 [2015], lv denied 27 NY3d 966 [2016]; People v Ture , 94 AD3d 1163, 1164 [2012], lv denied 19 NY3

2011In any event, defendant’s Alford plea represents “a rational choice among the alternatives available to him” (People v Friedman, 39 NY2d 463, 466 [1976]) and a voluntary decision to avoid the risks of trial and the possibility of consecutive sentences for numerous felonies (see People v Alexander, 97 NY2d 482, 487 [2002]; People v Legault, 180 AD2d 912, 913 [1992], ;v denied 79 NY2d 1051 [1992]; see also People v Francabandera, 33 NY2d at 434 ).

2010Thus, although defendant made a knowing and voluntary choice to enter an Alford plea, we conclude that the court erred in accepting the plea because the record does not contain the requisite “strong evidence of actual guilt” (Silmon, 95 NY2d at 475 ; see Oberdorf 5 AD3d at 1001 ; see also People v Alexander, 97 NY2d 482 , 486 n 3 [2002]).

2016Beyond that, the record “shows that defendant was advised of his rights and that his Alford plea . . . was knowingly, intelligently and voluntarily entered with a full understanding of its consequences” (People v Alfieri, 201 AD2d 935, 935 [1994], lv denied 83 NY2d 908 [1994]; see People v Clacks, 298 AD2d 846, 847 [2002], lv denied 99 NY2d 534 [2002]).

2016Beyond that, the record “shows that defendant was advised of his rights and that his Alford plea . . . was knowingly, intelligently and voluntarily entered with a full understanding of its consequences” (People v Alfieri, 201 AD2d 935, 935 [1994], lv denied 83 NY2d 908 [1994]; see People v Clacks, 298 AD2d 846, 847 [2002], lv denied 99 NY2d 534 [2002]).

2022In response, defendant assured the court that he had been afforded sufficient time to confer with counsel and was satisfied with counsel's services, that he had not been threatened, forced or otherwise pressured to accept the plea, that he was aware of the evidence against him, the strength of the People's case and any potential defenses and that he desired to enter an Alford plea in order to conclude the matter and avoid a potentially longer period of incarceration ( see People v Roosevelt , 169 AD3d 1117 , 1118 [2019]; People v Matthie , 34 AD3d 987, 989 [2006], lvs denied 8 NY3d 805 , 847 [

2022Defendant's assertion that he requested and was refused an adjournment so that he could further confer with counsel is belied by the plea colloquy, wherein defendant, when asked if he had been afforded sufficient time to discuss the plea with counsel, replied, "I have had too much time." As the record contains strong evidence of defendant's guilt and otherwise reflects that defendant's Alford plea "was a rational choice to limit the sentencing exposure had he gone to trial," we are satisfied that defendant's plea was knowing[*3], intelligent and voluntary ( People v Stewart , 307 AD2d at 534 ;

2022"An Alford plea, wherein the accused is permitted to enter a guilty plea without admitting culpability, may be allowed only where such plea 'is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt'" ( People v Stewart , 307 AD2d 533, 534 [2003], quoting Matter of Silmon v Travis , 95 NY2d 470, 475 [2000] [citation omitted]; see People v Ture , 94 AD3d 1163, 1164 [2012], lv denied 19 NY3d 968 [2012]; People v Washington , 51 AD3d 1223, 1223-1224 [2008]).

2012“An Alford plea may only be allowed when it is the product of a voluntary and rational choice and there is strong evidence of defendant’s guilt before the court” (People v Washington, 51 AD3d 1223, 1223-1224 [2008] [citations omitted]; see People v Hill, 16 NY3d 811, 814 [2011]; Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]).

2022The [*2]additional proceeding did not constitute an Alford plea inasmuch as defendant did not admit to any of the facts proffered by the prosecutor during the additional proceeding or even acknowledge that the record before the court contained strong evidence of actual guilt; instead, defendant immediately moved to withdraw his plea, declaring his innocence and stating that he would not continue any plea allocution ( cf. People v Hill , 16 NY3d 811, 813-814 [2011]).

2022In any event, were the claim properly preserved, we would conclude that the record establishes that defendant's [*2] Alford plea was the product of a voluntary and rational choice, and the record contains strong evidence of actual guilt ( see People v Hill , 16 NY3d 811 , 814 [2011]; People v Alsaifullah , 162 AD3d 1483 , 1485 [4th Dept 2018], lv denied 32 NY3d 1062 [2018]; People v Bates , 83 AD3d 1110, 1113 [3d Dept 2011], lv denied 21 NY3d 1072 [2013]).

2016Contrary to defendant’s contention, we conclude that he knowingly, voluntarily, and intelligently waived his right to appeal, and that valid waiver encompasses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 256 [2006]; see generally People v Lococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91 NY2d 733, 737 [1998]).

2016Contrary to defendant’s contention, we conclude that he knowingly, voluntarily, and intelligently waived his right to appeal, and that valid waiver encompasses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 256 [2006]; see generally People v Lococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91 NY2d 733, 737 [1998]).

2013The Court of Appeals has held that “a conviction premised upon an Alford plea may generally be used for the same purposes as any other conviction” (People v Miller, 91 NY2d 372, 378 [1998]; see Matter of Silmon v Travis, 95 NY2d at 475 ).

2013The Court of Appeals has held that “a conviction premised upon an Alford plea may generally be used for the same purposes as any other conviction” (People v Miller, 91 NY2d 372, 378 [1998]; see Matter of Silmon v Travis, 95 NY2d at 475 ).

2009Here, although the plea was not expressly characterized as an Alford plea, both of those conditions were met in this case, and it cannot be said that defendant “failed to appreciate that his responses to County Court’s inquiries would, in fact, constitute a plea of guilty” (id. at 751; see generally Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]; People v Spulka, 285 AD2d 840, 841 [2001], lv denied 97 NY2d 643 [2001]; People v Davis, 197 AD2d 921 [1993], lv denied 82 NY2d 848 [1993]).

2007By not moving to withdraw his plea or vacate the judgment of conviction, defendant did not preserve his arguments that his waiver of appeal was either involuntary, unknowing, or coerced (see People v Wright, 34 AD3d 940, 940 [2006], lv denied 8 NY3d 886 [2007]; People v Kirkland, 2 AD3d 1063, 1063 [2003]; People v Coppaway, 281 AD2d 754 [2001]), or that his Alford plea was not supported by sufficient record proof (see People v Lopez, 33 AD3d 1062 [2006], lv denied 8 NY3d 847 [2007]; People v Spulka, 285 AD2d 840, 840 [2001], lv denied 97 NY2d 643 [2001]).

2000Even absent a recitation as to every essential element, the court may still accept the plea — now an Alford plea (People v Francis, 38 NY2d 150, 153 , citing People v Serrano, 15 NY2d 304 ). 2 .

1999In 1993 the petitioner was convicted, by way of an Alford plea (see, North Carolina v Alford, 400 US 25 ; People v Serrano, 15 NY2d 304 ), of manslaughter in the first degree, and was sentenced to an indeterminate term of imprisonment of 5 to 15 years.

2018Even assuming, arguendo, that defendant's challenges to his Alford plea survive his valid waiver of appeal, we conclude that those challenges are unpreserved for our review because defendant failed to raise them as part of a motion to withdraw his plea or to vacate the judgment of conviction ( see People v Miller , 87 AD3d 1303 , 1303-1304 [4th Dept 2011], lv denied 18 NY3d 926 [2012]; People v Sherman , 8 AD3d 1026, 1026 [4th Dept 2004], lv denied 3 NY3d 681 [2004]), and this case does not fall within the narrow exception to the preservation requirement ( see People v Lopez , 71 NY2d 662, 666

2017Defendant’s further contention in appeal No. 1 that the court erred in accepting his Alford plea in the absence of “ ‘strong evidence of actual guilt’ ” in the record is not preserved for our review because he failed to move to withdraw his plea or to vacate the judgment of conviction (People v Elliott, 107 AD3d 1466, 1466 [2013], lv denied 22 NY3d 996 [2013]; see People v Heidgen, 22 NY3d 981, 981-982 [2013]; see also People v Sherman, 8 AD3d 1026, 1026 [2004], lv denied 3 NY3d 681 [2004]).

2014Contrary to defendant’s contention, this case does not fall within the narrow exception to the preservation requirement set forth in People v Lopez ( 71 NY2d 662, 666 [1988]) and, in any event, we conclude that the record establishes that defendant’s Alford plea was “the product of a voluntary and rational choice,” and that the record “contains strong evidence of actual guilt” (People v Dash, 74 AD3d 1859, 1860 [2010], lv denied 15 NY3d 892 [2010] [internal quotation marks omitted]; see People v Cruz, 89 AD3d 1464 , 1465 [2011], lv denied 18 NY3d 993 [2012]).

2014Contrary to defendant’s contention, this case does not fall within the narrow exception to the preservation requirement set forth in People v Lopez ( 71 NY2d 662, 666 [1988]) and, in any event, we conclude that the record establishes that defendant’s Alford plea was “the product of a voluntary and rational choice,” and that the record “contains strong evidence of actual guilt” (People v Dash, 74 AD3d 1859, 1860 [2010], lv denied 15 NY3d 892 [2010] [internal quotation marks omitted]; see People v Cruz, 89 AD3d 1464 , 1465 [2011], lv denied 18 NY3d 993 [2012]).

2005In any event, “it is not necessary that a defendant admit guilt when entering an Alford plea provided the plea is informed and intelligent” (People v White, 214 AD2d 811, 812 [1995], lv denied 86 NY2d 742 [1995]; see People v Crandall, supra at 717).

2003Protestations of innocence do not preclude the court from accepting an Alford plea {see People v Crandall, 272 AD2d 717, 717 [2000]).

2021With respect to defendant's contention that County Court erred in accepting his Alford plea because the record does not contain the requisite strong evidence of guilt or establish that the plea was the product of a voluntary and rational choice, we note that defendant's contention would survive even a valid waiver of the right to appeal to the extent that it implicates the voluntariness of the plea ( see People v Dash , 74 AD3d 1859, 1860 [4th Dept 2010], lv denied 15 NY3d 892 [2010]; People v Dille , 21 AD3d 1298 , 1298 [4th Dept 2005], lv denied 5 NY3d 882 [2005]).

2010The further contention of defendant that County Court erred in accepting his Alford plea “survives his waiver of the right to appeal to the extent that his contention implicates the voluntariness of the plea” (People v Dille, 21 AD3d 1298, 1298 [2005], lv denied 5 NY3d 882 [2005]; see People v Ebert, 15 AD3d 781 [2005]).