Opinion
108252
03-29-2018
The PEOPLE of the State of New York, Respondent, v. Marquis GAUSE, Appellant.
Keeley A. Maloney, Albany, for appellant. P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Before: Garry, P.J., Devine, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J.Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered January 28, 2016, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
In satisfaction of a superior court information and other pending charges, defendant pleaded guilty to robbery in the first degree and waived his right to appeal. He was sentenced as a second felony offender, in accordance with the terms of the plea agreement, to a prison term of eight years followed by five years of postrelease supervision. Defendant appeals.
Defendant's sole contention on appeal is that he was denied the effective assistance of counsel. Certain of defendant's arguments, including the extent to which defense counsel had contact with defendant following his arraignment, implicate matters outside of the record and are more properly the subject of a CPL article 440 motion (see People v. Santiago, 118 A.D.3d 1032, 1033, 986 N.Y.S.2d 361 [2014] ; People v. Masso–Diaz, 107 A.D.3d 1148, 1149, 966 N.Y.S.2d 694 [2013] ). With regard to the alleged deficiencies on the part of defense counsel that do not implicate the voluntariness of the plea, they are precluded by the unchallenged waiver of the right to appeal ( People v. Bouck, 153 A.D.3d 1522, 1523–1524, 61 N.Y.S.3d 388 [2017], lv denied 30 N.Y.3d 1017, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017] ). To the extent that the balance of defendant's ineffective assistance claim impacts the voluntariness of his plea, such challenges are unpreserved for our review as the record does not indicate that an appropriate postallocution motion was made (see People v. Smith, 155 A.D.3d 1244, 1246, 65 N.Y.S.3d 580 [2017] ; People v. London, 153 A.D.3d 1032, 1033, 60 N.Y.S.3d 581 [2017] ; People v. Islam, 134 A.D.3d 1348, 1349, 21 N.Y.S.3d 648 [2015] ).
Garry, P.J., Devine, Mulvey and Pritzker, JJ., concur.