Opinion
109810
03-05-2020
The PEOPLE of the State of New York, Respondent, v. Torrence STEELE, Also Known as MO, Appellant.
Amanda FiggsGanter, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Amanda FiggsGanter, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Colangelo, JJ.
MEMORANDUM AND ORDER
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered August 23, 2017, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant was charged in an indictment with various drug-related crimes as a result of his sale of cocaine to an undercover police informant. He was represented in the criminal action by counsel from the Public Defender's office. During the course of discovery, the People disclosed that "one of the People's primary witnesses ha[d] previously been represented by the [P]ublic [D]efender." Thereafter, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree in satisfaction of the charges contained in the indictment. He also waived his right to appeal. In accordance with the terms of the plea agreement, defendant was sentenced as a second felony drug offender with a violent predicate to four years in prison, followed by two years of postrelease supervision. Defendant appeals.
Defendant contends that he was denied the effective assistance of counsel because his attorney did not inform him of the existence of a potential conflict of interest prior to the entry of his guilty plea, which impacted its voluntariness. This claim, however, it is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Patterson, 177 A.D.3d 1027, 1028, 109 N.Y.S.3d 925 [2019], lv denied 34 N.Y.3d 1131, 118 N.Y.S.3d 525, 141 N.E.3d 481, 2020 WL 689707 [Jan. 17, 2020] ; People v. Harris, 82 A.D.3d 1449, 1449, 918 N.Y.S.2d 752 [2011], lv denied 17 N.Y.3d 953, 936 N.Y.S.2d 79, 959 N.E.2d 1028 [2011] ). To the extent that defendant also maintains that counsel was ineffective for failing to file an application requesting judicial diversion to a substance abuse treatment program — a claim that does not implicate the voluntariness of the plea —— it is precluded by defendant's unchallenged appeal waiver (see People v. Major, 176 A.D.3d 1257, 1258, 107 N.Y.S.3d 725 [2019], lv denied 34 N.Y.3d 1017, 114 N.Y.S.3d 765, 138 N.E.3d 494 [2019] ).
To the extent that defendant's claim is based on evidence outside the record, it is more properly the subject of a CPL article 440 motion (see
Defendant further asserts that, due to counsel's ineffectiveness, his guilty plea was not knowing, voluntary and intelligent. This claim, however, is similarly unpreserved given the absence of a postallocution motion (see People v. Griffin, 177 A.D.3d 1039, 1040, 109 N.Y.S.3d 923 [2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 146, 139 N.E.3d 804 [2019] ; People v. Hunt, 176 A.D.3d 1253, 1254, 111 N.Y.S.3d 134 [2019] ). Furthermore, defendant is precluded by his unchallenged appeal waiver from contesting the severity of the sentence (see People v. Ray, 178 A.D.3d 1128, 1128, 111 N.Y.S.3d 570 [2019] ; People v. Perez, 171 A.D.3d 1309, 1309–1310, 95 N.Y.S.3d 914 [2019] ).
Garry, P.J., Clark, Mulvey and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.
People v. Patterson, 177 A.D.3d at 1028, 109 N.Y.S.3d 925 ; People v. Snare, 174 A.D.3d 1222, 1223, 102 N.Y.S.3d 902 [2019], lv denied 34 N.Y.3d 984, 113 N.Y.S.3d 640, 137 N.E.3d 10 [2019] ).