Opinion
106866.
11-02-2017
The PEOPLE of the State of New York, Respondent, v. Isaiah PRINGLE, Appellant.
Stephen W. Herrick, Public Defender, Albany (Theresa Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Stephen W. Herrick, Public Defender, Albany (Theresa Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., DEVINE, AARONS and RUMSEY, JJ.
EGAN JR., J.Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered April 18, 2014, convicting defendant upon his plea of guilty of the crimes of attempted burglary in the second degree, aggravated unlicensed operation of a motor vehicle in the first degree and driving while intoxicated.
Defendant waived indictment and pleaded guilty to two superior court informations, charging him with attempted burglary in the second degree, aggravated unlicensed operation of a motor vehicle in the first degree and driving while intoxicated, and the plea agreement included the waiver of the right to appeal. County Court thereafter sentenced him to the agreed-upon aggregate prison term of six years, to be followed by three years of postrelease supervision. Defendant appeals.
We affirm. To the extent that defendant contends that he waived his right to appeal without realizing the ramifications thereof, we disagree. County Court distinguished the right to appeal from those rights automatically forfeited by pleading guilty, and defendant affirmed his understanding thereof and agreed to waive the right to appeal. Additionally, defendant executed a written appeal waiver in open court after discussing the waiver with counsel. In our view, defendant knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Mahon, 148 A.D.3d 1303, 1303, 48 N.Y.S.3d 842 [2017] ; People v. Samuel, 143 A.D.3d 1012, 1012, 38 N.Y.S.3d 445 [2016] ). Given the valid waiver of the right to appeal, defendant's contention that his sentence is harsh and excessive is precluded (see People v. Caldwell, 148 A.D.3d 1468, 1468, 49 N.Y.S.3d 312 [2017] ; People v. Rhodes, 143 A.D.3d 1011, 1012, 38 N.Y.S.3d 444 [2016] ).
Although defendant's claim that his plea was involuntary due to the ineffective assistance of counsel survives his appeal waiver, it is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Dolberry, 147 A.D.3d 1149, 1150, 46 N.Y.S.3d 437 [2017], lv. denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ; People v. Cox, 146 A.D.3d 1154, 1155, 46 N.Y.S.3d 693 [2017] ). We note that the majority of the issues raised—including counsel's failure to investigate potential defenses and trial strategy —involve matters outside of the record and are more properly the subject of a CPL article 440 motion (see People v. Griffin, 134 A.D.3d 1228, 1230, 20 N.Y.S.3d 738 [2015], lv. denied 27 N.Y.3d 1132, 39 N.Y.S.3d 114, 61 N.E.3d 513 [2016] ).
ORDERED that the judgment is affirmed.
GARRY, J.P., DEVINE, AARONS and RUMSEY, JJ., concur.