Opinion
11-19-2015
The PEOPLE of the State of New York, Respondent, v. Terell BETHEA, Appellant.
Sandra M. Colatosti, Albany, for appellant, and appellant pro se. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH and DEVINE, JJ.
Opinion
McCARTHY, J.P.
Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered June 5, 2013, convicting defendant upon his plea of guilty of the crime of murder in the second degree.
In full satisfaction of a six-count indictment, defendant pleaded guilty to murder in the second degree and waived his right to appeal. In accordance with the plea agreement, County Court sentenced defendant to a prison term of 17 years to life and he was ordered to pay restitution. Defendant now appeals.
We affirm. County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea and defendant executed a counseled written waiver in open court. Accordingly, defendant validly waived the right to appeal his conviction and sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Burritt, 127 A.D.3d 1433, 1434, 6 N.Y.S.3d 806 [2015] ). Therefore, his claim that his sentence is harsh and excessive is precluded as his “valid waiver of the right to appeal includes waiver of the right to invoke [this Court's] interest-of-justice jurisdiction to reduce the sentence” ( People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; accord People v. Morrison, 106 A.D.3d 1201, 1202, 964 N.Y.S.2d 761 [2013], lv. denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014] ). To the extent that defendant's claims challenging the integrity of the grand jury proceedings survive his guilty plea, such claims are not reviewable inasmuch as the minutes of the proceedings were not included in the record (see People v. Barill, 120 A.D.3d 951, 952, 991 N.Y.S.2d 214 [2014], lv. denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014]; see generally People v. Hawkins, 113 A.D.3d 1123, 1125, 978 N.Y.S.2d 571 [2014], lv. denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ).
Although defendant's claim that his plea was induced by an unfulfilled promise implicates the voluntariness of his plea and survives his appeal waiver, it is unpreserved for our review as there is no indication in the record that he made an appropriate postallocution motion (see People v. Benson, 100 A.D.3d 1108, 1108–1109, 953 N.Y.S.2d 380 [2012]; People v. Hall, 89 A.D.3d 1323, 1323, 932 N.Y.S.2d 919 [2011] ), and he did not make any statements during the plea allocution that triggered the narrow exception to the preservation rule (see People v. Merrill, 123 A.D.3d 1339, 1340, 999 N.Y.S.2d 265 [2014], lv. denied 26 N.Y.3d 970, 18 N.Y.S.2d 606, 40 N.E.3d 584 [2015]; People v. Benson, 100 A.D.3d at 1109, 953 N.Y.S.2d 380). Similarly, defendant's claim of ineffective assistance of counsel—to the extent that it impacts upon the voluntariness of his plea—is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Smith, 119 A.D.3d 1088, 1089, 988 N.Y.S.2d 724 [2014], lv. denied 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014]; People v. Watson, 110 A.D.3d 1110, 1111, 972 N.Y.S.2d 352 [2013], lv. denied 22 N.Y.3d 1160, 984 N.Y.S.2d 644, 7 N.E.3d 1132 [2014] ). Finally, defendant's challenge to the amount of restitution awarded is also unpreserved for our review as he did not request a hearing or otherwise challenge the amount at sentencing (see People v. Miller, 126 A.D.3d 1233, 1234, 6 N.Y.S.3d 685 [2015], lv. denied 25 N.Y.3d 1168, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015]; People v. Bressard, 112 A.D.3d 988, 989, 976 N.Y.S.2d 302 [2013], lv. denied 22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ).
ORDERED that the judgment is affirmed.
EGAN JR., LYNCH and DEVINE, JJ., concur.