Opinion
111298
03-23-2023
The PEOPLE of the State of New York, Respondent, v. John G. COLER, Appellant.
Rural Law Center of New York, Inc., Castleton (Kelly L. Egan of counsel), for appellant, and appellant pro se. Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella III of counsel), for respondent.
Rural Law Center of New York, Inc., Castleton (Kelly L. Egan of counsel), for appellant, and appellant pro se.
Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella III of counsel), for respondent.
Before: Lynch, J.P., Aarons, Pritzker, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a judgment of the County Court of Saratoga County (James A. Murphy III, J.), rendered November 8, 2018, convicting defendant upon his plea of guilty of the crimes of rape in the third degree and criminal sale of marihuana in the second degree (two counts).
Defendant was charged in a 10–count indictment with crimes that stemmed from allegations of a sexual and drug-related nature. Pursuant to a negotiated disposition, defendant purportedly waived his right to appeal and pleaded guilty to rape in the third degree and two counts of criminal sale of marihuana in the second degree. Consistent with the terms of the plea agreement, County Court sentenced defendant to an aggregate term of imprisonment of seven years to be followed by 10 years of postrelease supervision. Defendant appeals.
We affirm. Initially, as the People concede, the waiver of appeal is invalid. Given the invalid appeal waiver, defendant's challenge to the severity of the sentence is not precluded. However, upon review of the record and the seriousness of the underlying conduct, the agreed-upon sentence is not "unduly harsh or severe" ( CPL 470.15[6][b] ; see People v. Shackelton, 177 A.D.3d 1163, 1166, 115 N.Y.S.3d 488 [3d Dept. 2019], lv denied 34 N.Y.3d 1162, 120 N.Y.S.3d 270, 142 N.E.3d 1172 [2020] ; People v. Wright, 149 A.D.3d 1417, 1418, 52 N.Y.S.3d 583 [3d Dept. 2017] ). Defendant's claim that County Court considered improper factors and/or information in imposing the sentence is unpreserved for appellate review (see People v. Chrisostome, 167 A.D.3d 644, 645, 86 N.Y.S.3d 903 [2d Dept. 2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 226, 122 N.E.3d 1139 [2019] ; People v. White, 139 A.D.3d 1260, 1260, 31 N.Y.S.3d 669 [3d Dept. 2016] ). To the extent that defendant seeks relief based upon the enactment of the Marihuana Regulation and Taxation Act (L 2021, ch 92), which repealed Penal Law article 221 and enacted Penal Law article 222, such relief must be sought in the court of conviction by way of petition, and there is no indication here that defendant has yet done so (see CPL 440.46–a ; People v. Hall, 202 A.D.3d 1485, 1486, 162 N.Y.S.3d 627 [4th Dept. 2022], lv denied 38 N.Y.3d 1134, 172 N.Y.S.3d 852, 193 N.E.3d 517 [2022] ).
Contrary to defendant's pro se contention, by pleading guilty, defendant forfeited his claims relating to the legal sufficiency of the evidence presented to the grand jury (see People v. Hansen, 95 N.Y.2d 227, 232–233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Carston, 163 A.D.3d 1166, 1167, 80 N.Y.S.3d 724 [3d Dept. 2018], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ). To the extent that defendant argues that the integrity of the grand jury proceeding was impaired through the presentation of false evidence, he failed to preserve this claim (see People v. Blount, 129 A.D.3d 1303, 1305, 12 N.Y.S.3d 331 [3d Dept. 2015], lv denied 27 N.Y.3d 992, 38 N.Y.S.3d 103, 59 N.E.3d 1215 [2016] ; People v. Goldston, 126 A.D.3d 1175, 1176, 5 N.Y.S.3d 600 [3d Dept. 2015], lv denied 25 N.Y.3d 1201, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ). Defendant's pro se claim of ineffective assistance of counsel, to the extent that it impacts the voluntariness of the plea, is similarly unpreserved as the record does not reflect that defendant made an appropriate postallocution motion (see People v. West, 210 A.D.3d 1194, 1195, 178 N.Y.S.3d 266 [3d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 290, 204 N.E.3d 1072 [Feb. 22, 2023] ; People v. Rubert, 206 A.D.3d 1378, 1380, 170 N.Y.S.3d 346 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 518, 198 N.E.3d 761 [2022] ). The balance of defendant's ineffective assistance of counsel claim involves matters outside of the record and is more appropriately addressed in a CPL article 440 motion (see People v. West, 210 A.D.3d at 1195, 178 N.Y.S.3d 266 ).
Lynch, J.P., Pritzker, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed.