Opinion
107931
11-15-2018
The PEOPLE of the State of New York, Respondent, v. Anthony ALLEN, Also Known as Lucky, Appellant.
Jacob A. Vredenburgh, Wynantskill, for appellant. P. David Soares, District Attorney, Albany (Noel Mendez of counsel), for respondent.
Jacob A. Vredenburgh, Wynantskill, for appellant.
P. David Soares, District Attorney, Albany (Noel Mendez of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J.
In full satisfaction of a nine-count indictment, defendant agreed to plead guilty to one count of criminal sale of a controlled substance in the third degree and to waive his right to appeal in exchange for a prison term of 5½ years followed by three years of postrelease supervision. Following a detailed plea colloquy, defendant pleaded guilty to the subject crime, and County Court thereafter imposed the agreed-upon sentence. This appeal ensued.
We affirm. Although defendant's challenge to the voluntariness of his plea survives his unchallenged waiver of the right to appeal, this issue is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Williams , 163 A.D.3d 1172, 1173, 81 N.Y.S.3d 636 [2018], lv denied 81 N.Y.3d 636, ––– N.Y.S.3d ––––, N.E.3d –––– [Sept. 12, 2018] ; People v. Edwards , 160 A.D.3d 1280, 1281, 75 N.Y.S.3d 663 [2018], lv denied 31 N.Y.3d 1147, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ; People v. Widger , 160 A.D.3d 1297, 1297, 75 N.Y.S.3d 360 [2018] ). Defendant's ineffective assistance of counsel claim – to the extent that it impacts upon the voluntariness of his plea – is similarly unpreserved (see People v. Reap , 163 A.D.3d 1287, 1289, 81 N.Y.S.3d 654 [2018] ; People v. Burks , 163 A.D.3d 1286, 1287, 80 N.Y.S.3d 733 [2018] ; People v. Duggins , 161 A.D.3d 1445, 1446, 77 N.Y.S.3d 765 [2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 863, 109 N.E.3d 1163 [2018] ). Contrary to defendant's assertion, nothing on the face of the plea colloquy, wherein defendant expressly confirmed that he had discussed possible defenses to the charged crime with counsel, cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Bailey , 158 A.D.3d 948, 948, 71 N.Y.S.3d 667 [2018] ; People v. Hopper , 153 A.D.3d 1045, 1046–1047, 61 N.Y.S.3d 176 [2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ). To the extent that defendant asserted that "he was under the influence of weed during the course of the [subject] offense," this claim "was articulated for the first time during his presentence interview with the Probation Department, and County Court was under no obligation to conduct any further inquiry in response to this belated, postplea assertion" ( People v. Bailey , 158 A.D.3d at 949, 71 N.Y.S.3d 667 ; see People v. Hopper , 153 A.D.3d at 1047, 61 N.Y.S.3d 176 ). Finally, defendant's challenge to the severity of the agreed-upon sentence imposed is precluded by his unchallenged appeal waiver (see People v. Blackburn , 164 A.D.3d 960, 962, 82 N.Y.S.3d 242 [2018] ).
Egan Jr., J.P., Clark, Mulvey and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.