Opinion
109671
10-03-2019
The PEOPLE of the State of New York, Respondent, v. Sterling MAJOR, Appellant.
Salvatore C. Adamo, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Salvatore C. Adamo, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Lynch, J.P., Clark, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered August 23, 2016, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to assault in the second degree and was required to waive his right to appeal. Consistent with the terms of the plea agreement, County Court sentenced defendant to a prison term of seven years to be followed by three years of postrelease supervision. Defendant appeals.
We affirm. To the extent that defendant challenges the validity of the waiver of the right to appeal, the record reflects that it was knowingly, voluntarily and intelligently entered. County Court distinguished the separate and distinct nature of the waiver of the right to appeal from those rights automatically forfeited by the plea of guilty, which defendant acknowledged he understood. In addition, defendant executed a written waiver in open court, affirming that he had sufficient time to review it with counsel, understood it and had no questions. In view of this, we find that defendant validly waived his right to appeal (see People v. Greene , 171 A.D.3d 1407, 1408, 88 N.Y.S.3d 279 [2019]; People v. Weis , 171 A.D.3d 1403, 1403–1404, 97 N.Y.S.3d 537 [2019] ; People v. Muller , 166 A.D.3d 1240, 1241, 88 N.Y.S.3d 279 [2018] ).
Although the valid appeal waiver does not preclude defendant's challenge to the voluntariness of the plea or his claim of ineffective assistance of counsel to the extent that it impacts the voluntariness of the plea, such issues are nevertheless unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Carroll , 172 A.D.3d 1821, 1821, 99 N.Y.S.3d 520 [2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 743, 133 N.E.3d 448, 2019 WL 4327474 [Aug. 29, 2019] ; People v. Greene , 171 A.D.3d at 1408, 99 N.Y.S.3d 120 ). The balance of defendant's ineffective assistance of counsel claim, including that counsel failed to pursue a motion to dismiss the indictment on speedy trial grounds, does not implicate the voluntariness of the plea and, therefore, is precluded by the valid appeal waiver (see 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] ; People v. Slingerland , 101 A.D.3d 1265, 1267, 955 N.Y.S.2d 690 [2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ). Defendant's challenge to the severity of the agreed-upon sentence is also precluded by the valid appeal waiver (see People v. Brown , 170 A.D.3d 1375, 1377, 96 N.Y.S.3d 722 [2019], lv denied 33 N.Y.3d 1029, 102 N.Y.S.3d 510, 126 N.E.3d 160 [2019] ; People v. Johnson , 170 A.D.3d 1274, 1275, 95 N.Y.S.3d 467 [2019] ).
Lynch, J.P., Clark and Pritzker, JJ., concur. ORDERED that the judgment is affirmed.