Calendar Date: February 21, 2018
M. Quinn, Albany, for appellant.
Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of
counsel), for respondent.
Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker,
MEMORANDUM AND ORDER
from a judgment of the County Court of Saratoga County
(Murphy III, J.), rendered April 21, 2016, convicting
defendant upon her plea of guilty of the crime of criminal
possession of a controlled substance in the second degree.
satisfaction of a 10-count indictment and another pending
charge, defendant pleaded guilty to criminal possession of a
controlled substance in the second degree and waived her
right to appeal. County Court thereafter sentenced her, as a
second felony offender, to 10 years in prison, to be followed
by five years of postrelease supervision. Defendant now
affirm. Initially, we reject defendant's claim that her
waiver of the right to appeal was invalid. County Court
explained that the right to appeal was separate and distinct
from the rights forfeited by a guilty plea, and the record
reflects that defendant executed a written appeal waiver and
acknowledged that she had discussed the waiver with counsel
and understood it. Accordingly, we find that defendant's
appeal waiver was knowing, intelligent and voluntary (see
People v Baxter, 154 A.D.3d 1010, 1011 ;
People v Hess, 150 A.D.3d 1560, 1560 ).
Defendant's valid waiver of the right to appeal precludes
her challenge to the severity of her sentence (see People
v Lopez, 6 N.Y.3d 248, 256 ; People v
Weir, 155 A.D.3d 1190, 1191 ).
contention that her plea was involuntary because it was
coerced survives her appeal waiver but is not preserved for
our review, as there is no indication in the record that she
made an appropriate postallocution motion (see People v
Jones, 155 A.D.3d 1103, 1106 , lv denied
30 N.Y.3d 1106');">30 N.Y.3d 1106 ; People v Williams, 150 A.D.3d
1549, 1550 ). Even assuming that defendant's
statements made at the outset of the plea colloquy implicated
the voluntariness of her plea and therefore triggered the
narrow exception to the preservation rule (see People v
Lopez, 71 N.Y.2d 662, 666 ), defendant thereafter
consulted with counsel, and County Court conducted a
satisfactory inquiry to ensure that defendant was entering
her plea knowingly, intelligently and voluntarily (see
People v Easter, 122 A.D.3d 1073, 1073-1074 ,
lv denied 24 N.Y.3d 1219');">24 N.Y.3d 1219 ; People v
Goodell, 104 A.D.3d 1026, 1026 , lv
denied 22 N.Y.3d 1138');">22 N.Y.3d 1138 ).
defendant's claim of ineffective assistance of counsel,
her "challenges to counsel's motion practice and
discovery efforts were forfeited by [her] guilty plea"
(People v Trombley, 91 A.D.3d 1197, 1201 ,
lv denied 21 N.Y.3d 914');">21 N.Y.3d 914 ; accord People v
Kormos, 126 A.D.3d 1039, 1040 ). To the extent
that her ineffective assistance claim impacts the
voluntariness of the plea, it is unpreserved in light of the
lack of an appropriate postallocution motion (see People
v Dolberry, 147 A.D.3d 1149, 1150 , lv
denied 29 N.Y.3d 1078');">29 N.Y.3d 1078 ; People v Islam,
134 A.D.3d 1348, 1349 ). The balance of defendant's
ineffective assistance of counsel claim concerns matters
outside of the record and is more appropriately addressed in
a CPL article 440 motion (see People v Doggett, 146
A.D.3d 1172, 1173 , lv denied 29 N.Y.3d 1031');">29 N.Y.3d 1031
; People v Goldman, 139 A.D.3d 1111, 1112
, lv denied 28 N.Y.3d 970');">28 N.Y.3d 970 ).
McCarthy, J.P., Lynch, Devine and ...