Opinion
112259
04-20-2023
The PEOPLE of the State of New York, Respondent, v. Andre VAKHOULA, Appellant.
Aaron A. Louridas, Delmar, for appellant. Brian P. Conaty, Acting District Attorney, Monticello (Danielle K. Blackaby of counsel), for respondent.
Aaron A. Louridas, Delmar, for appellant.
Brian P. Conaty, Acting District Attorney, Monticello (Danielle K. Blackaby of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Fisher, J.
Appeal from a judgment of the County Court of Sullivan County (Michael F. McGuire, J.), rendered November 15, 2019, convicting defendant upon his plea of guilty of the crime of burglary in the second degree as a sexually motivated felony.
Defendant was charged in a four-count indictment with burglary in the second degree as a sexually motivated felony, two counts of assault in the second degree and resisting arrest. The charges stemmed from a September 2018 incident during which defendant entered a woman's apartment intending to have sexual relations with her; the victim tried to flee, and defendant was discovered naked and attempting to drag the woman back into her apartment. Pursuant to a negotiated disposition that was in full satisfaction of the indictment, defendant pleaded guilty to burglary in the second degree as a sexually motivated felony and purported to waive his right to appeal both orally and in writing. Consistent with the terms of the plea agreement, County Court sentenced defendant to a prison term of eight years, to be followed by 10 years of postrelease supervision, and required him to consent to deportation and, upon his release from prison, to register as a sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]). Defendant appeals.
Initially, defendant argues, and the People concede, that his combined oral and written waiver of appeal was overbroad and consequently invalid (see People v. Thomas, 34 N.Y.3d 545, 557–559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Velazquez, 194 A.D.3d 1181, 1182, 147 N.Y.S.3d 253 [3d Dept. 2021], lv denied 37 N.Y.3d 995, 152 N.Y.S.3d 402, 174 N.E.3d 342 [2021] ; People v. Deming, 190 A.D.3d 1193, 1194, 136 N.Y.S.3d 918 [3d Dept. 2021] ). Given defendant's invalid appeal waiver, his challenge to the severity of his sentence is not precluded (see People v. Blauvelt, 211 A.D.3d 1175, 1175, 180 N.Y.S.3d 328 [3d Dept. 2022] ; People v. Moore, 203 A.D.3d 1401, 1401, 163 N.Y.S.3d 712 [3d Dept. 2022], lv denied 38 N.Y.3d 1034, 169 N.Y.S.3d 216, 189 N.E.3d 323 [2022] ). We are unpersuaded, however, that the sentence imposed, which was within the agreed-upon range and well below the statutory maximum (see Penal Law §§ 70.45[2–a][b] ; 70.80[4][a][ii]; 130.92[3]; 140.25), is "unduly harsh or severe" given the serious nature of the offense for which defendant was convicted and defendant's failure to accept complete responsibility for his actions ( CPL 470.15[6][b] ; see People v. Casatelli, 204 A.D.3d 1092, 1093, 1099, 166 N.Y.S.3d 722 [3d Dept. 2022], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 867, 193 N.E.3d 532 [2022] ; People v. Davis, 149 A.D.3d 1246, 1248, 52 N.Y.S.3d 520 [3d Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ; People v. Bjork, 105 A.D.3d 1258, 1264, 963 N.Y.S.2d 472 [3d Dept. 2013] ).
Defendant contends that his guilty plea was not knowing, voluntarily and intelligent. This claim, however, is unpreserved for our review as the record does not reveal that defendant made an appropriate postallocution motion to withdraw his guilty plea despite having an opportunity to do so prior to sentencing (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Steinard, 210 A.D.3d 1202, 1202–1203, 178 N.Y.S.3d 262 [3d Dept. 2022] ). Defendant's contention that he received the ineffective assistance of counsel, to the extent that it impacts upon the voluntariness of his plea, is similarly unpreserved (see People v. West, 210 A.D.3d 1194, 1195, 178 N.Y.S.3d 266 [3d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 290, 204 N.E.3d 1072 [2023] ; People v. Nack, 200 A.D.3d 1197, 1198, 157 N.Y.S.3d 590 [3d Dept. 2021], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 365, 188 N.E.3d 557 [2022] ). The balance of defendant's ineffective assistance of counsel claim involves matters outside of the record that are more appropriately addressed in a CPL article 440 motion (see People v. West, 210 A.D.3d at 1195, 178 N.Y.S.3d 266 ; People v. Dye, 210 A.D.3d 1192, 1194, 178 N.Y.S.3d 239 [3d Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 789, 204 N.E.3d 425 [2023] ).
Finally, we agree with defendant, as well as the People's concession, that burglary in the second degree as a sexually motivated felony is not a registerable offense under SORA because it is not expressly identified as a "[s]ex offense" pursuant to Correction Law § 168–a (2)(a) (see Penal Law §§ 130.91, 140.25 ; People v. Winter, ––– A.D.3d ––––, ––––, ––– N.Y.S.3d ––––, 2023 N.Y. Slip Op. 01820, *1 [3d Dept. 2023] ; People v. Conyers, 212 A.D.3d 417, 418, 181 N.Y.S.3d 74 [1st Dept. 2023], lv denied 39 N.Y.3d 1110, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Mar. 15, 2023] ; People v. Simmons, 203 A.D.3d 106, 110–113, 161 N.Y.S.3d 69 [1st Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 239, 189 N.E.3d 346 [2022] ; People v. Buyund, 179 A.D.3d 161, 163–170, 112 N.Y.S.3d 179 [2d Dept. 2019], revd on other grounds 37 N.Y.3d 532, 162 N.Y.S.3d 276, 182 N.E.3d 1068 [2021], on remand 205 A.D.3d 729, 165 N.Y.S.3d 705 [2d Dept. 2022] ). We therefore modify the judgment as indicated.
Egan Jr., J.P., Clark, Pritzker and Ceresia, JJ., concur.
ORDERED that the judgment is modified, on the law, by vacating the provisions thereof certifying defendant as a sex offender pursuant to the Sex Offender Registration Act and requiring him to register as a sex offender and pay the related sex offender registration fee; and, as so modified, affirmed.