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People v. Evans

Supreme Court of New York, Third Department

December 28, 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
EDWARD EVANS, Appellant.

          Calendar Date: November 21, 2017

          Michael C. Ross, Bloomingburg, for appellant.

          D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

          Before: Peters, P.J., Garry, Clark, Aarons and Pritzker, JJ.

          MEMORANDUM AND ORDER

          Clark, J.

         Appeal from a judgment of the County Court of Ulster County (McGinty, J.), rendered April 15, 2015, convicting defendant upon his plea of guilty of the crimes of assault in the second degree and criminal possession of a weapon in the third degree.

         In February 2013, defendant was charged in an indictment with assault in the second degree and criminal possession of a weapon in the third degree. Following plea negotiations, several appearances and a suppression hearing, defendant's trial commenced in February 2015. After jury selection and opening statements, defendant indicated his desire to withdraw his previously entered not guilty pleas, and defendant thereupon pleaded guilty to assault in the second degree and criminal possession of a weapon in the third degree. County Court ultimately sentenced him to an aggregate prison term of five years, to be followed by five years of postrelease supervision. Defendant now appeals.

         We affirm. Defendant contends that his plea was not knowing, intelligent and voluntary because County Court failed to advise him adequately of the trial-related rights that he was forfeiting by pleading guilty. This claim, however, is unpreserved for our review, as there is no indication in the record that he made an appropriate postallocution motion, despite having ample opportunity to do so prior to sentencing (see People v Conceicao, 26 N.Y.3d 375, 381-382 [2015]; People v Golgoski, 145 A.D.3d 1195, 1195 [2016], lv denied 28 N.Y.3d 1184');">28 N.Y.3d 1184 [2017]). The absence of a postallocution motion also renders defendant's claim of ineffective assistance of counsel, to the extent that it impacts the voluntariness of his plea, unpreserved (see People v Cox, 146 A.D.3d 1154, 1155 [2017]; People v Franklin, 146 A.D.3d 1082, 1084 [2017], lvs denied 29 N.Y.3d 946, 948 [2017]; People v Perkins, 140 A.D.3d 1401, 1402-1403 [2016], lv denied 28 N.Y.3d 1126');">28 N.Y.3d 1126 [2016]). Moreover, the narrow exception to the preservation requirement is inapplicable, inasmuch as the record does not reflect that defendant made any statements during the plea proceeding that cast doubt upon his guilt or called into question the voluntariness of his guilty plea (see People v Williams, 27 N.Y.3d 212, 219-220 [2016]; People v Clark, 153 A.D.3d 1093, 1095 [2017], lv denied 30 N.Y.3d 979');">30 N.Y.3d 979 [2017]). Nor does the record reflect that defendant brought to County Court's attention any deficiency in counsel's representation that would support his contention that, absent a postallocution motion, he sufficiently preserved his challenge to the voluntariness of his plea for our review (see People v Clark, 142 A.D.3d 723, 724-725 [2016], lv denied 28 N.Y.3d 1026');">28 N.Y.3d 1026 [2016]; see generally CPL 470.05 [2]).

         We also reject defendant's claim that the alleged delay leading up to the February 2015 commencement of his trial deprived him of his constitutional right to a speedy trial (see CPL 1.20 [17]; 30.20). While this claim survives defendant's guilty plea, it is unpreserved for our review, as he failed to raise such challenge before County Court or in a pretrial motion (see People v Lawrence, 64 N.Y.2d 200, 203-204 [1984]; People v Gerald, 153 A.D.3d 1029, 1030 [2017]; see also CPL 170.30 [1] [e]; [2]). Were this issue properly before us, we would find it to be without merit given the lack of any apparent prejudice to defendant or significant delay caused by the People, and the fact that defendant was not incarcerated until after his plea allocution (see People v Taranovich, 37 N.Y.2d 442, 445 [1975]; People v Bennett, 143 A.D.3d 1008, 1010 [2016]; People v Pope, 96 A.D.3d 1231, 1233-1234 [2012], lv denied 20 N.Y.3d 1064');">20 N.Y.3d 1064 [2013]).

         Finally, contrary to defendant's contention, we do not find that the imposed sentence is harsh or excessive. Defendant pleaded guilty to the crimes at issue with full knowledge that there was no promise regarding sentencing. In addition, given his extensive criminal history, the violent nature of his crime and the young age of the victim, we discern no extraordinary circumstances or any abuse of discretion warranting a reduction of the sentence in the interest of justice (see CPL 470.15 [3] [c]; People v Gunn, 144 A.D.3d 1193, 1196 [2016], lv denied 28 N.Y.3d 1145');">28 N.Y.3d 1145 [2017]; People v Kuhlmann, 130 A.D.3d 1086, 1087 [2015], lv denied 26 N.Y.3d 1089');">26 N.Y.3d 1089 [2015]).

          Peters, P.J., Garry, Aarons and ...


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