Opinion
No. 111984
03-30-2023
The People of the State of New York, Respondent, v. Tyquan S. Hilliard, Appellant.
Alexander W. Bloomstein, Hillsdale, for appellant. Brian P. Conaty, Acting District Attorney, Monticello (Howard Block of counsel), for respondent.
Calendar Date: February 23, 2023
Alexander W. Bloomstein, Hillsdale, for appellant.
Brian P. Conaty, Acting District Attorney, Monticello (Howard Block of counsel), for respondent.
Before: Lynch, J.P., Aarons, Pritzker, Fisher and McShan, JJ.
Lynch, J.P.
Appeal from a judgment of the Supreme Court (Stephan G. Schick, J.), rendered April 12, 2019 in Sullivan County, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree and assault in the second degree.
Defendant and a codefendant were charged in a 14-count indictment with various crimes, including four counts of robbery in the second degree and two counts of assault in the second degree. The charges stemmed from allegations that they entered a cell phone store displaying what appeared to be a firearm, ordered the employees and customers into the back room of the store, bound them and stole property from the store and a customer. It was further alleged that a police officer was injured while pursuing defendant and the codefendant after they fled from the store in an automobile. In satisfaction of the foregoing, defendant pleaded guilty to one count of robbery in the second degree and one count of assault in the second degree and purportedly waived the right to appeal. Prior to sentencing, defendant moved pro se to withdraw his plea based in part upon ineffective assistance of counsel, and he was assigned new counsel. At the sentencing hearing, defendant withdrew the motion to withdraw his plea and, pursuant to the terms of the plea agreement, Supreme Court sentenced defendant, as a second violent felony offender, to a prison term of 10½ years on the robbery conviction and a lesser concurrent sentence on the assault conviction, followed by five years of postrelease supervision. Defendant appeals.
We affirm. Initially, the People concede, and our review of the record confirms, that defendant's waiver of the right to appeal is invalid as the written waiver is overly broad and Supreme Court did not ensure that defendant understood the distinction that some appellate review survived (see People v Jones, 199 A.D.3d 1069, 1069-1070 [3d Dept 2021], lv denied 38 N.Y.3d 928 [3d Dept 2022]; People v Barrales, 179 A.D.3d 1313, 1314-1315 [3d Dept 2020]). Nevertheless, defendant's challenges to the voluntariness of his plea and the factual sufficiency of the plea allocution are unpreserved for our review "given that he withdrew his motion to withdraw his guilty plea at sentencing and failed to move to vacate the judgment of conviction" (People v Smith, 155 A.D.3d 1244, 1245 [3d Dept 2017] [internal quotation marks and citation omitted]; see People v Jones, 114 A.D.3d 1080, 1081 [3d Dept 2014], lv denied 24 N.Y.3d 961 [2014]). Moreover, defendant did not make any statements that were inconsistent with his guilt, negated an element of the crime or cast doubt about the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v West, 210 A.D.3d 1194, 1195 [3d Dept 2022]; lv denied ___ N.Y.3d ___ [Feb. 22, 2023] People v Haas, 206 A.D.3d 1386, 1386 [3d Dept 2022], lv denied 38 N.Y.3d 1188 [2022]). Contrary to defendant's contention, his admission during the plea colloquy - that he was intentionally preventing a police officer from arresting him by fleeing and that the officer was injured while in the course of pursuing him - satisfied the causation element of assault in the second degree (see Penal Law § 120.05 [3]; People v Iovino, 149 A.D.3d 1350, 1352 [3d Dept 2017], lv denied 30 N.Y.3d 950 [2017]; People v Cipollina, 94 A.D.3d 1549, 1550 [4th Dept 2012], lv denied 19 N.Y.3d 971 [2012]; People v Chandler, 94 A.D.3d 1155, 1156 [3d Dept 2012], lv denied 19 N.Y.3d 971 [2012]).
Defendant's claim of ineffective assistance of counsel - to the extent that it impacts the voluntariness of his plea - is similarly unpreserved for the lack of an appropriate postallocution motion (see People v Loya, 204 A.D.3d 1255, 1256 [3d Dept 2022], lv denied 38 N.Y.3d 1072 [2022]; People v Rhodes, 203 A.D.3d 1316, 1318 [3d Dept 2022]). To the extent that the alleged inadequacies are premised upon matters not appearing in the record before us, such claims are more properly the subject of a CPL article 440 motion (see People v Dye, 210 A.D.3d 1192, 1194 [3d Dept 2022], lv denied 39 N.Y.3d 1072 [2023]; People v Greene, 171 A.D.3d 1407, 1409 [3d Dept 2019]). Finally, as to defendant's challenge to the severity of the sentence imposed on the robbery conviction, we note that the sentence is in the middle of the sentencing range for second violent felony offenders convicted of a class C violent felony (see Penal Law § 70.04 [3] [b]). Given the nature of the crime, we do not find the agreed-upon sentence "was unduly harsh or severe" (CPL 470.15 [6] [b]; see People v Carney, 207 A.D.3d 1000, 1001 [3d Dept 2022]) and we decline defendant's invitation to modify the sentence in the interest of justice.
Aarons, Pritzker, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed.