Opinion
106996
05-24-2018
The PEOPLE of the State of New York, Respondent, v. Tobby DUGGINS, Appellant.
Samantha E. Koolen, Albany, for appellant, and appellant pro se. Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephanie Milks of counsel), for respondent.
Samantha E. Koolen, Albany, for appellant, and appellant pro se.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephanie Milks of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered March 11, 2014, convicting defendant upon his guilty plea of the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree (see Penal Law § 220.39[1] ). He was thereafter sentenced, as a second felony offender and consistent with the terms of the plea agreement, to a prison term of six years, to be followed by three years of postrelease supervision. Defendant now appeals. We affirm. Defendant's contention that his guilty plea was not knowingly, voluntarily and intelligently entered is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion, despite the opportunity to do so prior to the imposition of his sentence (see People v. Williams , 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Conceicao , 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Young , 158 A.D.3d 955, 956, 68 N.Y.S.3d 773 [2018] ). Further, defendant made no statements during the plea colloquy to implicate the narrow exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Park , 159 A.D.3d 1132, 1133, 72 N.Y.S.3d 242 [2018] ).
Defendant's challenge to County Court's Sandoval ruling was forfeited upon entry of his guilty plea (see People v. Sirico , 135 A.D.3d 19, 24, 18 N.Y.S.3d 430 [2015], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016] ; People v. Ingram , 128 A.D.3d 1404, 1404, 8 N.Y.S.3d 528 [2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ; People v. Nichols , 277 A.D.2d 715, 718, 715 N.Y.S.2d 783 [2000] ; People v. Emerson , 141 A.D.2d 924, 530 N.Y.S.2d 283 [1988] ). As to defendant's ineffective assistance of counsel claim, his challenges to counsel's motion practice were similarly forfeited by his guilty plea (see People v. Rutigliano , 159 A.D.3d 1280, 1281, 73 N.Y.S.3d 674 [2018] ; People v. Kormos , 126 A.D.3d 1039, 1040, 4 N.Y.S.3d 390 [2015] ). To the extent that defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea, such challenge is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Decker , 159 A.D.3d 1190, 1192, 73 N.Y.S.3d 274 [2018] ; People v. Park , 159 A.D.3d at 1134, 72 N.Y.S.3d 242 ). We also note that certain of defendant's arguments, including that counsel was ineffective for failing to advise him of and pursue an entrapment defense, concern matters outside of the record and are, thus, more properly pursued in a CPL article 440 motion (see People v. Scretchen , 270 A.D.2d 515, 516, 703 N.Y.S.2d 760 [2000] ).
Finally, defendant's challenge to the severity of the sentence imposed is patently meritless. As County Court imposed the minimum permissible sentence (see Penal Law § 70.70[4][b][i] ), such sentence cannot be considered harsh or excessive (see People v. Brown , 35 A.D.3d 957, 824 N.Y.S.2d 747 [2006], lv denied 8 N.Y.3d 944, 836 N.Y.S.2d 554, 868 N.E.2d 237 [2007] ; People v. Magar , 8 A.D.3d 689, 691, 777 N.Y.S.2d 786 [2004], lv denied 3 N.Y.3d 677, 784 N.Y.S.2d 16, 817 N.E.2d 834 [2004] ).
Defendant's remaining contentions, including those raised in his supplemental pro se brief, have been considered and determined to be without merit.
ORDERED that the judgment is affirmed.
McCarthy, J.P., Egan Jr., Devine and Rumsey, JJ., concur.