Calendar Date: October 10, 2017
Stephen W. Herrick, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.
David Soares, District Attorney, Albany (Emily A. Schultz of
counsel), for respondent.
Before: Peters, P.J., Garry, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Albany County (Lynch,
J.), rendered February 27, 2015, convicting defendant upon
his plea of guilty of the crime of robbery in the second
satisfaction of a three-count indictment, defendant pleaded
guilty to one count of robbery in the second degree and
waived his right to appeal. Although defendant subsequently
moved - both pro se and with newly assigned counsel - to
vacate his plea, defendant ultimately withdrew that motion
and thereafter was sentenced in accordance with the terms of
the revised plea agreement to 10 years in prison followed by
five years of postrelease supervision - said sentence to be
served concurrently with the sentence defendant then was
serving. This appeal by defendant ensued.
affirm. To the extent that defendant's brief may be read
as challenging the validity of his waiver of the right to
appeal, we find this claim to be unpersuasive. Defendant was
advised that an appeal waiver was a condition of the plea
agreement, County Court distinguished the waiver of appeal
from the trial-related rights that defendant was forfeiting,
defendant executed a written waiver of appeal in open court
and, in response to questioning by the court, defendant
confirmed his understanding of the waiver. Under these
circumstances, we are satisfied that defendant's combined
oral and written appeal waiver was knowing, intelligent and
voluntary (see People v Hall, 147 A.D.3d 1151, 1151
, lv denied 29 N.Y.3d 1080');">29 N.Y.3d 1080 ; People
v Dolberry, 147 A.D.3d 1149, 1150 , lv
denied 29 N.Y.3d 1078');">29 N.Y.3d 1078 ).
defendant's challenge to the voluntariness of his plea
survives his valid appeal waiver (see People v
McRae, 150 A.D.3d 1328, 1329 , lv denied
29 N.Y.3d 1093');">29 N.Y.3d 1093 ), this issue is unpreserved for our
review "given that he withdrew his motion to withdraw
his guilty plea at sentencing and failed to move to vacate
the judgment of conviction" (People v Brown, 10
A.D.3d 801, 802 , lv denied 3 N.Y.3d 739');">3 N.Y.3d 739
; see People v Terenzi, 57 A.D.3d 1228, 1229
, lv denied 12 N.Y.3d 822');">12 N.Y.3d 822 ). To the
extent that defendant's brief may be read as challenging
the factual sufficiency of his plea, this claim is precluded
by the valid appeal waiver and, further, is similarly
unpreserved (see People v Bryant, 128 A.D.3d 1223,
1224 , lv denied 26 N.Y.3d 926');">26 N.Y.3d 926 ).
Moreover, the narrow exception to the preservation
requirement was not triggered here, as defendant did not make
any statements during the plea colloquy that cast doubt upon
his guilt or otherwise called into question the voluntariness
of his plea (see People v Benson, 100 A.D.3d 1108,
1109 ; People v Richardson, 83 A.D.3d 1290,
1291 , lv denied 17 N.Y.3d 821');">17 N.Y.3d 821 ).
Although defendant denied responsibility for the crime during
the course of the presentence investigation, he reaffirmed
his acceptance of responsibility prior to sentencing - twice
indicating to County Court that he was in fact guilty of the
underlying crime (see People v Hudson, 130 A.D.3d
1320, 1320 ; People v Neithardt, 127 A.D.3d
1502, 1503 ). In any event, our review of the record
confirms that defendant was aware of the terms of the plea
agreement, including the length of the sentence to be
imposed, and affirmatively "indicated that he had
sufficient time to confer with counsel and had not been
forced into pleading guilty, [thus] belying his present
claims of coercion or undue pressure" (People v
Broomfield, 128 A.D.3d 1271, 1272 , lv
denied 26 N.Y.3d 1086');">26 N.Y.3d 1086 ).
defendant's ineffective assistance of counsel claim,
certain of the arguments now advanced - including
counsel's alleged failure to adequately explore potential
defenses and sufficiently explain the various options
available to defendant - implicate matters outside of the
record and, as such, are more properly considered in the
context of a CPL article 440 motion (see People v
Breault, 150 A.D.3d 1548, 1549 ; People v
Franklin, 146 A.D.3d 1082, 1084 , lvs
denied 29 N.Y.3d 946, 948 ). To the extent that
the balance of this claim impacts upon the voluntariness of
defendant's plea, "such claim survives his valid
appeal waiver but is unpreserved for our review in the
absence of an appropriate postallocution motion"
(People v Lewis, 143 A.D.3d 1183, 1185 ).
Finally, in light of defendant's valid appeal waiver, his
challenge to the severity of his sentence is precluded
(see People v Lambert, 151 A.D.3d 1119, 1120 ,
lv denied 29 N.Y.3d 1092');">29 N.Y.3d 1092 ; People v
Caldwell, 148 A.D.3d 1468, 1468 ).
Peters, P.J., Garry, Mulvey and ...