Opinion
2015-10-8
The PEOPLE of the State of New York, Respondent, v. Karen R. SAYLOR, Appellant.
Keeley A. Maloney, Albany, for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Keeley A. Maloney, Albany, for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ.
PETERS, P.J.
Appeal from a judgment of the Supreme Court (Teresi, J.), rendered February 5, 2013 in Albany County, convicting defendant upon her plea of guilty of the crime of attempted burglary in the second degree.
Pursuant to a negotiated agreement that satisfied charges stemming from six residential burglaries, defendant waived indictment and entered a plea of guilty to attempted burglary in the second degree as charged in a superior court information. Defendant also waived her right to appeal and signed a written appeal waiver in open court and was sentenced, in accordance with the agreement, to a term of five years in prison to be followed by three years of postrelease supervision. Defendant now appeals.
Defendant argues that her counsel was ineffective in that, among other deficiencies, he failed to investigate the facts or develop the record to establish defendant's level of intoxication from drugs or alcohol at the time that she committed these burglaries. Defendant did not preserve these claims by making a postallocution motion ( see People v. Lord, 128 A.D.3d 1277, 1278, 10 N.Y.S.3d 349 [2015] ), and they are precluded by her unchallenged appeal waiver “except insofar as [they] could be construed to have impacted upon the voluntariness of [her] plea” (People v. Glynn, 73 A.D.3d 1290, 1291, 900 N.Y.S.2d 513 [2010] ). Moreover, the claimed deficiencies concern matters outside the record that are properly the subject of a CPL article 440 motion ( see People v. Goldston, 126 A.D.3d 1175, 1178, 5 N.Y.S.3d 600 [2015] ). In any event, a review of counsel's performance reflects that counsel negotiated a favorable plea agreement that avoided consecutive sentences for six separate burglaries, and “nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Wares, 124 A.D.3d 1079, 1080, 2 N.Y.S.3d 270 [2015], lv. denied25 N.Y.3d 993 [2015]; see People v. Eveland, 42 A.D.3d 755, 756, 839 N.Y.S.2d 335 [2007], lv. denied9 N.Y.3d 961, 848 N.Y.S.2d 29, 878 N.E.2d 613 [2007] ). Further, defendant has not demonstrated “the absence of strategic or other legitimate explanations” for counsel's decision to forgo an omnibus motion seeking suppression of her confession to police in favor of the advantageous plea agreement (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629 [1998] [internal quotation marks and citation omitted] ).
While counsel was obligated to file a notice of appeal upon defendant's timely request, we granted defendant's pro se motion pursuant to CPL 460.30 for an extension of time to take this appeal and accepted her untimely notice of appeal. Consequently, counsel's omission did not cause defendant to lose the right to appeal ( see People v. Syville, 15 N.Y.3d 391, 397, 912 N.Y.S.2d 477, 938 N.E.2d 910 [2010] ). Further, the proper recourse where counsel fails to file a notice of appeal is an application for a writ of error coram nobis ( see id. at 400–401, 912 N.Y.S.2d 477, 938 N.E.2d 910; People v. Pecararo, 83 A.D.3d 1284, 1287, 920 N.Y.S.2d 859 [2011], lv. denied17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ).
ORDERED that the judgment is affirmed.
LAHTINEN, GARRY and ROSE, JJ., concur.