Opinion
110595
10-07-2021
The PEOPLE of the State of New York, Respondent, v. Edward MCCOY, Appellant.
Erin C. Morigerato, Albany, for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Erin C. Morigerato, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER
Colangelo, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered June 20, 2018, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to burglary in the second degree and purportedly waived his right to appeal. County Court sentenced defendant to the agreed-upon prison term of 10 years, to be followed by five years of postrelease supervision. Defendant appeals. We affirm. Defendant argues that his waiver of the right to appeal was invalid. We disagree. The record reflects that defendant was advised that a waiver of the right to appeal was a condition of the plea agreement and County Court advised defendant of the separate and distinct nature of the right to appeal and distinguished it from the trial-related rights that are automatically forfeited by pleading guilty, and defendant affirmed his understanding thereof (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Thaxton, 191 A.D.3d 1166, 1167, 142 N.Y.S.3d 245 [2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 541, 170 N.E.3d 415 [2021] ). Defendant also executed a written waiver after reviewing it with counsel and assuring County Court that he understood it (see People v. Botts, 191 A.D.3d 1044, 1044–1045, 140 N.Y.S.3d 632 [2021], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 123, 167 N.E.3d 1258 [2021] ; People v. Burnett, 186 A.D.3d 1837, 1838, 129 N.Y.S.3d 344 [2020], lvs denied 36 N.Y.3d 969, 970, 138 N.Y.S.3d 497, 162 N.E.3d 726 [2020] ). Although defendant contends that the provision in the written waiver that it applied "to all legal issues that can be waived under the law" erroneously advised him of an absolute bar to the pursuit of potential remedies, "we are satisfied that ‘the counseled defendant understood the distinction that some appellate review survived’ " ( People v. Thomas, 190 A.D.3d 1157, 1158, 139 N.Y.S.3d 458 [2021], quoting People v. Thomas, 34 N.Y.3d 545, 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; compare People v. Brito, 184 A.D.3d 900, 900–901, 124 N.Y.S.3d 749 [2020] ). Accordingly, we find that defendant knowingly, intelligently and voluntarily waived the right to appeal (see People v. Hemingway, 192 A.D.3d 1266, 1266–1267, 142 N.Y.S.3d 674 [2021], lvs denied 37 N.Y.3d 956, 960, 147 N.Y.S.3d 527, 170 N.E.3d 401 [2021] ; People v. Thomas, 190 A.D.3d at 1158–1159, 139 N.Y.S.3d 458 ). Given the valid appeal waiver, defendant's challenge to the severity of the sentence is precluded (see People v. Carter, 191 A.D.3d 1168, 1170, 142 N.Y.S.3d 645 [2021] ; People v. Pribble, 190 A.D.3d 1194, 1195, 136 N.Y.S.3d 922 [2021] ). Although defendant's assertion that his guilty plea was not knowing, intelligent and voluntary survives his appeal waiver, this claim has not been preserved for our review as the record does not disclose that he made an appropriate postallocution motion despite having ample time to do so (see People v. Payson, 189 A.D.3d 1820, 1820, 137 N.Y.S.3d 580 [2020], lv denied 36 N.Y.3d 1099, 144 N.Y.S.3d 114, 167 N.E.3d 1249 [2021] ; People v. Almonte, 179 A.D.3d 1222, 1224, 116 N.Y.S.3d 782 [2020], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 271, 147 N.E.3d 541 [2020] ). Defendant's contention that he received ineffective assistance of counsel, to the extent that it implicates the voluntariness of his plea, also survives the appeal waiver but is similarly unpreserved (see People v. Vilbrin, 183 A.D.3d 1012, 1013, 123 N.Y.S.3d 297 [2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 861, 151 N.E.3d 543 [2020] ; People v. White, 172 A.D.3d 1822, 1823–1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ). Moreover, defendant did not make any statements during the plea colloquy that were inconsistent with his guilt, negated an essential element of the charged crime or otherwise called into question the voluntariness of his plea and, therefore, the narrow exception to the preservation requirement does not apply (see People v. Crossley, 191 A.D.3d 1046, 1047, 137 N.Y.S.3d 746 [2021], lv denied 37 N.Y.3d 991, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2021 ]; People v. Weidenheimer, 181 A.D.3d 1096, 1097, 122 N.Y.S.3d 149 [2020] ). As such, defendant's contention that County Court failed to advise him of the constitutional trial-related rights that were automatically forfeited by pleading guilty was not preserved (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Weidenheimer, 181 A.D.3d at 1097, 122 N.Y.S.3d 149 ). In any event, the record reflects that defendant was fully advised of and understood the waiver of his trial-related rights (see People v. Conceicao, 26 N.Y.3d at 381–384, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Evans, 159 A.D.3d 1226, 1227, 72 N.Y.S.3d 650 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ). Finally, the balance of defendant's ineffective assistance of counsel claim, including that counsel failed to investigate the facts of his case, research the applicable law or advise him of potential defenses, involve matters outside the record that are more properly the subject of a CPL article 440 motion (see People v. Drake, 179 A.D.3d 1221, 1222, 117 N.Y.S.3d 353 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020] ; People v. White, 172 A.D.3d at 1824, 101 N.Y.S.3d 519 [2019] ).
Garry, P.J., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.