Calendar Date: February 23, 2018
G. Parisi, Schenectady, for appellant.
M. Carney, District Attorney, Schenectady (Peter H. Willis of
counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Rumsey and Pritzker,
MEMORANDUM AND ORDER
from a judgment of the County Court of Schenectady County
(Sypniewski, J.), rendered December 4, 2015, convicting
defendant upon his plea of guilty of the crime of arson in
the second degree.
responded to a report of a domestic dispute and found
defendant barricaded, with his long-term girlfriend and her
one-year-old daughter, inside a bedroom in his apartment,
which he had set on fire. Police forced their way into the
apartment, rescued the victims and arrested defendant.
Defendant was later charged in a 12-count indictment with two
counts of attempted murder in the second degree and other
crimes stemming from this incident. In satisfaction of all
charges, defendant pleaded guilty to arson in the second
degree as charged in count 3 of the indictment pursuant to a
plea agreement that included an oral and signed written
waiver of appeal. Consistent with the terms of that
agreement, County Court sentenced defendant, as an admitted
second felony offender, to a prison term of 13 years to be
followed by five years of postrelease supervision and issued
orders of protection. Defendant appeals.
affirm. While defendant's challenge to the voluntariness
of his plea survives his valid, unchallenged waiver of
appeal, this issue is nonetheless unpreserved for our review
absent evidence of an appropriate postallocution motion to
withdraw his guilty plea on this ground, despite an
opportunity to do so prior to the imposition of sentence
(see CPL 220.60 ; People v Williams, 27
N.Y.3d 212, 219-220 ; People v Hansen, 95
N.Y.2d 227, 231 n 2 ). Moreover, the narrow exception
to the preservation requirement was not implicated, as
defendant did not make any statements during his plea
allocution or at sentencing that were inconsistent with his
guilt or otherwise called into question the voluntariness of
his plea (see People v Lopez, 71 N.Y.2d 662, 666
; People v Peterson, 147 A.D.3d 1148, 1149
; People v Good, 83 A.D.3d 1124, 1125-1126
, lv denied 17 N.Y.3d 816');">17 N.Y.3d 816 ; cf.
People v Gresham, 151 A.D.3d 1175, 1177-1178 ;
People v Laflower, 145 A.D.3d 1341, 1342-1343
). Defendant's assertions during his presentencing
interview with the Probation Department that he did not
recall the incident contradicted his sworn plea allocution,
and his claim that he had been informed that he was suffering
from "drug-induced psychosis" are not supported by
any medical evidence or documentation in the record
. Under these circumstances, County
Court was not obligated to inquire into defendant's
competency or to sua sponte offer him an opportunity to
withdraw his guilty plea (see CPL 730.30 ;
People v Hopper, 153 A.D.3d 1045, 1047 ,
lv denied 30 N.Y.3d 1061');">30 N.Y.3d 1061 ; People v
Duffy, 126 A.D.3d 1142, 1142 ). As defendant
raised no objections to proceeding at sentencing, there was
no duty of further inquiry (see People v Good, 83
A.D.3d at 1125-1126; cf. People v Gresham, 151
A.D.3d at 1177-1178).
extent that defendant's ineffective assistance of counsel
claim impacts the voluntariness of his plea, it also survives
his appeal waiver but is likewise unpreserved for our review
(see People v Peterson, 147 A.D.3d at 1149). Were we
to address this claim, we would find that defendant received
meaningful representation, as counsel negotiated an
advantageous plea deal that greatly reduced his sentencing
exposure and nothing in the record casts doubt on trial
counsel's effectiveness (see People v Chaires,
150 A.D.3d 1326, 1327 , lv denied 29 N.Y.3d
1124 ). Any claims related to matters outside of the
record on appeal, such as what counsel advised defendant
regarding moving to withdraw his plea, are more properly
addressed in a CPL article 440 motion (see People v
Pringle, 155 A.D.3d 1085, 1086 ; People v
Chaires, 150 A.D.3d at 1327-1328).
P.J., Egan Jr., Lynch and Rumsey, JJ., concur.
that the judgment is affirmed.
 While defendant filed a notice of intent
to proffer psychiatric testimony, he ultimately pleaded
guilty after indicating during the plea allocation that he
understood that he was waiving all defenses and that he had
discussed the plea terms with defense counsel. Were we to
address this claim, we would find that "County Court
advised him during the plea allocution that he would be
waiving, among other rights, his right to present defenses,
which he indicated he understood, and he acknowledged that he
was pleading guilty because he was, in fact, guilty, thereby
establishing the knowing, voluntary and ...