Opinion
108900
08-02-2018
The PEOPLE of the State of New York, Respondent, v. Danny WHITE, Appellant.
Tracy E. Steeves, Kingston, for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Tracy E. Steeves, Kingston, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Before: Garry, P.J., McCarthy, Clark, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from a judgment of the Supreme Court (Breslin, J.), rendered September 23, 2016 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
Defendant pleaded guilty to burglary in the second degree in full satisfaction of a four-count indictment and waived the right to appeal. Supreme Court thereafter imposed the agreed-upon sentence of eight years in prison, followed by five years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's contention that his plea was not knowing, intelligent and voluntary survives his uncontested appeal waiver, but is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Guidry, 158 A.D.3d 901, 902, 71 N.Y.S.3d 174 [2018] ; People v. Macon, 142 A.D.3d 739, 739, 36 N.Y.S.3d 752 [2016], lvs denied 28 N.Y.3d 1073, 1075, 47 N.Y.S.3d 232, 234, 69 N.E.3d 1028, 1030 [2016] ). Moreover, the exception to the preservation rule is inapplicable, inasmuch as defendant did not make any statements during the colloquy that were inconsistent with his guilt or cast doubt on the voluntariness of his plea (see People v. Duvall, 157 A.D.3d 1060, 1061, 66 N.Y.S.3d 754 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249, 2018 WL 2946021 [May 14, 2018] ; People v. White, 156 A.D.3d 1249, 1250, 65 N.Y.S.3d 812 [2017], lv denied 31 N.Y.3d 988, 77 N.Y.S.3d 665, 102 N.E.3d 442 [2018] ). While defendant informed Supreme Court that he was under the influence of Xanax, cocaine and marihuana at the time that he committed the crime, he did not indicate that he could not recall the subject events (see People v. DeCenzo, 132 A.D.3d 1160, 1161, 18 N.Y.S.3d 760 [2015], lv denied 27 N.Y.3d 996, 38 N.Y.S.3d 106, 59 N.E.3d 1218 [2016] ; compare People v. Jimenez, 110 A.D.3d 740, 741, 972 N.Y.S.2d 100 [2013] ). Supreme Court thereafter affirmed that defendant was aware of an intoxication defense that could be considered by a jury regarding the required element of intent, that he had discussed the defense with counsel and that he had no further questions in this regard. We therefore conclude that Supreme Court sufficiently ensured that defendant validly waived the right to pursue a potential intoxication defense at trial (see People v. DeCenzo, 132 A.D.3d at 1161, 18 N.Y.S.3d 760 ; People v. McNulty, 70 A.D.3d 1127, 1128, 894 N.Y.S.2d 573 [2010] ).
Defendant's claim that he was denied the effective assistance of counsel, to the extent that it impacts the voluntariness of his plea, survives his appeal waiver but is similarly unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Robinson, 155 A.D.3d 1252, 1253, 64 N.Y.S.3d 740 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ; People v. Baxter, 154 A.D.3d 1010, 1011, 60 N.Y.S.3d 855 [2017] ). Notably, the bulk of defendant's claims in this regard, such as counsel's alleged failure to investigate the case, involve matters outside of the record and are more properly raised in a CPL article 440 motion (see People v. Franklin, 146 A.D.3d 1082, 1084, 45 N.Y.S.3d 635 [2017], lvs denied 29 N.Y.3d 946, 948, 54 N.Y.S.3d 377, 379, 76 N.E.3d 1080, 1082 [2017]; People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [2016] ). Finally, defendant's challenge to the severity of his sentence is precluded by his waiver of the right to appeal (see People v. Gause, 157 A.D.3d 1167, 1168, 67 N.Y.S.3d 506 [2018], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018] ; People v. Fairweather, 147 A.D.3d 1153, 1154, 46 N.Y.S.3d 439 [2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ).
ORDERED that the judgment is affirmed.
Garry, P.J., McCarthy, Clark and Rumsey, JJ., concur.