Opinion
108771
11-15-2018
The PEOPLE of the State of New York, Respondent, v. Nicholas BONAFANTE, Appellant.
Brian M. Quinn, Albany, for appellant. Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Brian M. Quinn, Albany, for appellant.
Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
Clark, J.
In satisfaction of a nine-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree and waived his right to appeal. In accordance with the plea agreement, County Court sentenced defendant, as a second violent felony offender, to a prison term of 2½ years followed by two years of postrelease supervision, with such sentence to run concurrently with a prison sentence he had received in another county. Defendant appeals.
Although defendant's challenge to the voluntariness of his guilty plea survives the unchallenged waiver of the right to appeal, it is nevertheless unpreserved for our review, as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Kruppenbacher, 163 A.D.3d 1266, 1267, 80 N.Y.S.3d 740 [2018] ; People v. Lamb, 162 A.D.3d 1395, 1396, 80 N.Y.S.3d 520 [2018] ). The narrow exception to the preservation requirement is inapplicable because, contrary to defendant's contention, he did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Gomez, 162 A.D.3d 1311, 1312, 79 N.Y.S.3d 740 [2018] ). Defendant's ineffective assistance of counsel claim — to the extent that it impacts the voluntariness of the plea — is similarly unpreserved for review given the lack of an appropriate postallocution motion (see People v. Lamb, 162 A.D.3d at 1396, 80 N.Y.S.3d 520 ; People v. Rutigliano, 159 A.D.3d 1280, 1281, 73 N.Y.S.3d 674 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ). The remainder of defendant's ineffective assistance of counsel claim is premised on matters outside the record and is more appropriately considered in the context of a CPL article 440 motion (see People v. Tucker, 161 A.D.3d 1481, 1482, 78 N.Y.S.3d 450 [2018], lv denied 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ; People v. Rutigliano, 159 A.D.3d at 1281, 73 N.Y.S.3d 674 ).
McCarthy, J.P., Egan Jr., Devine and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.