Opinion
110166
01-09-2020
The PEOPLE of the State of New York, Respondent, v. Juan ALMONTE, Appellant.
Erin C. Morigerato, Albany, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Rebecca L. Fox of counsel), for respondent.
Erin C. Morigerato, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Rebecca L. Fox of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Garry, P.J. Appeal from a judgment of the County Court of Clinton County (Lawliss, J.), rendered December 5, 2017, convicting defendant upon his plea of guilty of the crime of promoting prison contraband in the first degree.
In September 2017, defendant, a prison inmate, was charged in a two-count indictment with criminal possession of a weapon in the third degree and promoting prison contraband in the first degree. The charges stemmed from his possession of a sharpened toothbrush. Thereafter, pursuant to a plea agreement and in full satisfaction of the charges, and in exchange for a sentencing commitment from County Court, defendant pleaded guilty to promoting prison contraband in the first degree and waived his right to appeal. Consistent with the terms of the plea agreement and that commitment, County Court sentenced defendant to a prison term of 1 to 4 years. Defendant appeals.
We affirm. Contrary to defendant's contention, the record demonstrates that he knowingly, voluntarily and intelligently waived his right to appeal. After defendant entered his guilty plea, County Court provided a general explanation of the right to appeal and the appellate process, which defendant acknowledged that he understood. The court then explained to defendant that the waiver of the right to appeal was a condition of the plea agreement, and defendant indicated that he understood the terms of the plea agreement and that he wanted to waive his right to appeal (see People v. White, 172 A.D.3d 1822, 1823, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ; People v. Peryea, 169 A.D.3d 1120, 1120, 93 N.Y.S.3d 456 [2019], lv denied 33 N.Y.3d 980, 101 N.Y.S.3d 242, 124 N.E.3d 731 [2019] ; People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018] ). Defendant then conferred with counsel and executed a written appeal waiver in open court, which specifically noted that the right to appeal is "separate [and] distinct" from those rights automatically forfeited by the guilty plea, and defendant stated to the court that he read and "fully underst[ood]" the written waiver (see People v. Cannelli, 173 A.D.3d 1567, 1568, 101 N.Y.S.3d 668 [2019] ; People v. Johnson, 170 A.D.3d 1274, 1275, 95 N.Y.S.3d 467 [2019] ; People v. Page, 138 A.D.3d 1313, 1314, 30 N.Y.S.3d 374 [2016], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 387, 62 N.E.3d 127 [2016] ). Under these circumstances, we find that defendant's combined oral and written appeal waiver was knowingly, voluntarily and intelligently entered (see People v. Boyette, 175 A.D.3d 751, 752, 103 N.Y.S.3d 870 [2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 648, 137 N.E.3d 18 [2019] ; People v. Cota, 136 A.D.3d 1116, 1117, 24 N.Y.S.3d 537 [2016] ). In light of the valid waiver, defendant's argument regarding the perceived severity of the agreed-upon sentence is precluded (see People v. Freeman, 169 A.D.3d 1115, 1116, 92 N.Y.S.3d 496 [2019], lv denied 33 N.Y.3d 1069, 105 N.Y.S.3d 46, 129 N.E.3d 366 [2019] ; People v. Chapman, 168 A.D.3d 1315, 1316, 90 N.Y.S.3d 920 [2019], lv denied 33 N.Y.3d 1067, 105 N.Y.S.3d 56, 129 N.E.3d 376 [2019] ).
Defendant's contention that his plea was not knowing, intelligent and voluntary survives his appeal waiver (see People v. Bond, 146 A.D.3d 1155, 1156, 44 N.Y.S.3d 776 [2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ; People v. Giammichele, 144 A.D.3d 1320, 1320, 40 N.Y.S.3d 794 [2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ), but it is unpreserved for our review as there is no indication in the record that defendant made an appropriate postallocution motion despite having ample opportunity to do so (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; People v. Dickerson, 168 A.D.3d 1194, 1194–1195, 90 N.Y.S.3d 702 [2019] ; People v. Duvall, 157 A.D.3d 1060, 1061, 66 N.Y.S.3d 754 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ). Further, defendant did not make any statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. Pastor, 28 N.Y.3d at 1090, 45 N.Y.S.3d 317, 68 N.E.3d 42 ; People v. Quell, 166 A.D.3d 1388, 1389, 86 N.Y.S.3d 814 [2018], lv denied 32 N.Y.3d 1208, 99 N.Y.S.3d 204, 122 N.E.3d 1117 [2019] ; People v. Horton, 166 A.D.3d 1226, 1227, 86 N.Y.S.3d 352 [2018] ).
Finally, although defendant's claim of ineffective assistance of counsel survives the valid waiver of his right to appeal because it impacts the voluntariness of his plea (see People v. Danielson, 170 A.D.3d 1430, 1432, 96 N.Y.S.3d 754 [2019], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 486, 205 L.E.2d 280, 2019 WL 5686582 [Nov. 4, 2019] ; People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019] ), such challenge is also unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Johnson, 170 A.D.3d at 1275, 95 N.Y.S.3d 467 ; People v. Muller, 166 A.D.3d 1240, 1241, 88 N.Y.S.3d 279 [2018] ; People v. Tariq, 166 A.D.3d 1211, 1211–1212, 88 N.Y.S.3d 287 [2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 641, 121 N.E.3d 269 [2019] ; People v. Reap, 163 A.D.3d 1287, 1289, 81 N.Y.S.3d 654 [2018], lv denied 32 N.Y.3d 1128, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018] ). To the extent that defendant alleges that counsel failed to adequately investigate the case against him and adequately explain the terms of the plea agreement with him, these claims are based upon facts outside the record and are more properly the subject of a CPL article 440 motion (see People v. Snare, 174 A.D.3d 1222, 1223, 102 N.Y.S.3d 902 [2019], lv denied 34 N.Y.3d 984, 113 N.Y.S.3d 640, 137 N.E.3d 10 [2019] ; People v. Hackett, 167 A.D.3d 1090, 1095, 89 N.Y.S.3d 429 [2018] ; People v. Brown, 115 A.D.3d 1115, 1116, 982 N.Y.S.2d 205 [2014], lv denied 24 N.Y.3d 959, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ; People v. Norton, 164 A.D.3d 1502, 1503–1504, 82 N.Y.S.3d 665 [2018], lv denied 32 N.Y.3d 1114, 91 N.Y.S.3d 365, 115 N.E.3d 637 [2018] ).
Egan Jr., Aarons, Pritzker and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.