Opinion
05-25-2017
The PEOPLE of the State of New York, Respondent, v. Kareem WILLIAMS, Appellant.
Barrett D. Mack, Albany, for appellant. Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
Barrett D. Mack, Albany, for appellant.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
Before: GARRY, J.P., LYNCH, ROSE, CLARK and AARONS, JJ.
GARRY, J.P.
Appeal from a judgment of the County Court of Greene County (Tailleur, J.), rendered June 10, 2014, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a six-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal. County Court thereafter sentenced defendant, as a second felony drug offender, to a prison term of 10 years, to be followed by three years of postrelease supervision, to be served concurrently with the sentence that defendant was already serving. Defendant now appeals.
We affirm. Defendant's challenge to County Court's denial of his request for a Wade hearing is precluded by his unchallenged waiver of the right to appeal (see People v. Walton, 101 A.D.3d 1489, 1490, 956 N.Y.S.2d 705 [2012], lv. denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ; People v. Barrier, 7 A.D.3d 885, 886, 776 N.Y.S.2d 374[2004], lvs. denied 3 N.Y.3d 670, 784 N.Y.S.2d 9, 817 N.E.2d 827 [2004] ). His claim that his plea was not voluntarily entered because it was coerced survives his appeal waiver, but is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion (see People v. Lobaton, 140 A.D.3d 1534, 1535, 33 N.Y.S.3d 780 [2016], lv. denied 28 N.Y.3d 972, 43 N.Y.S.3d 259, 66 N.E.3d 5 [2016] ; People v. Conley, 135 A.D.3d 1238, 1238–1239, 23 N.Y.S.3d 724 [2016] ). Moreover, the narrow exception to the preservation rule is not applicable, as defendant made no statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Forest, 141 A.D.3d 967, 968–969, 36 N.Y.S.3d 296 [2016], lv. denied 28 N.Y.3d 1145, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ).
Defendant also claims that he was denied due process on the ground that his plea was involuntary because he was not advised at the time of the plea that it would result in his driver's license being suspended for six months. The record reflects that defendant was advised of the suspension of his driver's license at the sentencing hearing, prior to the imposition of the sentence. Defendant was thus provided an opportunity to challenge the voluntariness of his plea in this regard, but failed to do so. Accordingly, this issue is also unpreserved for our review (see People v. Peque, 22 N.Y.3d 168, 182–183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ; People v. Murray, 15 N.Y.3d 725, 726–727, 906 N.Y.S.2d 521, 932 N.E.2d 877 [2010] ; People v. Garraway, 144 A.D.3d 703, 703, 39 N.Y.S.3d 824 [2016] ;
People v. Gerald, 103 A.D.3d 1249, 1250, 959 N.Y.S.2d 362 [2013] ). In any event, the suspension of his driver's license was a collateral consequence of defendant's guilty plea and the failure to disclose this consequence during the plea colloquy does not warrant vacatur of the plea (see People v. Peque, 22 N.Y.3d at 184–185, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; People v. Garraway, 144 A.D.3d at 703, 39 N.Y.S.3d 824 ; People v. Gerald, 103 A.D.3d at 1250, 959 N.Y.S.2d 362 ).
Defendant's claim of ineffective assistance of counsel survives his appeal waiver, insofar as the alleged ineffective assistance impacts the voluntariness of plea, but is also unpreserved for our review for lack of an appropriate postallocution motion (see People v. Cox, 146 A.D.3d 1154, 1154–1155, 46 N.Y.S.3d 693 [2017] ; 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] ). To the extent that defendant's ineffective assistance of counsel claim involves matters outside of the record, it is more properly pursued in a motion pursuant to CPL article 440 (see People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [2016] ; People v. Pickett, 128 A.D.3d 1275, 1276, 9 N.Y.S.3d 737 [2015], lvs. denied 26 N.Y.3d 930, 933, 17 N.Y.S.3d 96, 96, 38 N.E.3d 842, 842 [2015] ). Finally, defendant's contention that he was improperly sentenced as a second felony drug offender because County Court violated CPL 400.21(3) by failing to give him an opportunity to contest the allegations contained in the prior felony information is unpreserved for our review as he failed to object at sentencing (see People v. Shelmandine,
128 A.D.3d 1180, 1180–1181, 9 N.Y.S.3d 891 [2015] ; People v. House, 119 A.D.3d 1289, 1290, 989 N.Y.S.2d 919 [2014] ). In any event, the record reflects that County Court substantially complied with the statutory requirements (see People v. Shelmandine, 128 A.D.3d at 1181, 9 N.Y.S.3d 891 ; People v. Walton, 101 A.D.3d at 1490, 956 N.Y.S.2d 705 ).
ORDERED that the judgment is affirmed.
LYNCH, ROSE, CLARK and AARONS, JJ., concur.