Opinion
112995B
06-01-2023
The PEOPLE of the State of New York, Respondent, v. Michael RODRIGUEZ, Appellant.
Donnial K. Hinds, Albany, for appellant. P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Donnial K. Hinds, Albany, for appellant.
P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Before: Garry, P.J., Aarons, Pritzker, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Fisher, J. Appeal from a judgment of the County Court of Albany County (William A. Carter, J.), rendered March 30, 2021, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with one count of attempted criminal possession of a controlled substance in the third degree, with the understanding that he would be sentenced to a prison term of 1½ years followed by two years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty to the charged crime, and County Court sentenced defendant to the agreed-upon term of imprisonment and, with the People's consent, reduced the period of postrelease supervision to 1½ years. This appeal ensued.
Initially, we reject defendant's assertion that his waiver of the right to appeal is invalid. County Court explained that the waiver was separate and distinct from the trial-related rights that defendant would be forfeiting by pleading guilty and expressly delineated examples of issues that would survive the appeal waiver (see People v. Ferretti, 209 A.D.3d 1173, 1173, 177 N.Y.S.3d 379 [3d Dept. 2022] ; People v. LaPage, 207 A.D.3d 950, 951, 171 N.Y.S.3d 654 [3d Dept. 2022] ). Upon reviewing the plea transcript, we are satisfied that County Court's oral waiver colloquy both cured the deficiencies in the written waiver executed by defendant and made clear the distinction that some appellate review nonetheless survived (compare People v. Rodriguez, 206 A.D.3d 1383, 1384, 170 N.Y.S.3d 359 [3d Dept. 2022] ; People v. Lilliard, 206 A.D.3d 1241, 1242, 169 N.Y.S.3d 744 [3d Dept. 2022] ). As the record reflects that defendant understood the nature and ramifications of the right being relinquished, we find that defendant's appeal waiver is valid. Accordingly, defendant's challenge to the severity of his sentence is precluded (see People v. Ashley, 211 A.D.3d 1174, 1174, 179 N.Y.S.3d 460 [3d Dept. 2022] ).
Defendant's ineffective assistance of counsel claim, to the extent that it impacts upon the voluntariness of his plea, survives his valid appeal waiver but is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. DeJesus, 210 A.D.3d 1195, 1196, 176 N.Y.S.3d 887 [3d Dept. 2022], lv denied 39 N.Y.3d 985, 181 N.Y.S.3d 195, 201 N.E.3d 812 [2022] ;
People v. Silva, 205 A.D.3d 1226, 1227, 166 N.Y.S.3d 619 [3d Dept. 2022], lv denied 38 N.Y.3d 1074, 171 N.Y.S.3d 450, 191 N.E.3d 402 [2022] ). The narrow exception to the preservation requirement was not triggered as defendant did not make any statements that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Silva, 205 A.D.3d at 1227, 166 N.Y.S.3d 619 ; People v. Agueda, 202 A.D.3d 1153, 1154, 160 N.Y.S.3d 489 [3d Dept. 2022], lv denied 38 N.Y.3d 1031, 169 N.Y.S.3d 209, 189 N.E.3d 316 [2022] ). Lastly, our review of the record does not reveal any evidence of a condition or issue that impaired defendant's ability to understand the plea proceeding and/or triggered a need for further inquiry by County Court (see People v. Crampton, 201 A.D.3d 1020, 1022, 159 N.Y.S.3d 263 [3d Dept. 2022], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022] ). Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit. Accordingly, the judgment of conviction is affirmed.
Although defendant faults counsel for failing to pursue defendant's possible participation in a judicial diversion program, this claim does not impact upon the voluntariness of defendant's plea (see People v. Steele, 181 A.D.3d 972, 973, 117 N.Y.S.3d 629 [3d Dept. 2020] ) and, in any event, is unpreserved for our review (see People v. Driscoll, 147 A.D.3d 1157, 1158, 48 N.Y.S.3d 522 [3d Dept. 2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ).
Garry, P.J., Aarons, Pritzker and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed.