Calendar Date: December 18, 2019
C. Morigerato, Albany, for appellant.
Michael J. Kavanagh, Acting District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Pritzker and
from a judgment of the County Court of Ulster County
(Williams, J.), rendered October 3, 2017, convicting
defendant upon his plea of guilty of the crime of burglary in
the second degree.
to a plea agreement, defendant pleaded guilty to burglary in
the second degree in satisfaction of a two-count indictment
and waived his right to appeal. County Court sentenced him to
a prison term of six years, followed by five years of
postrelease supervision, in accordance with the terms of the
agreement and ordered restitution in the amount of $7, 865.
affirm. Defendant's challenge to the validity of his
waiver of the right to appeal is unavailing. County Court
thoroughly explained to defendant that his right to appeal
was separate and distinct from the trial-related rights that
he would be automatically forfeiting by pleading guilty, and
defendant repeatedly confirmed that he understood the nature
of the waiver (see People v Lopez, 6 N.Y.3d 248, 256
; People v Harrison, 176 A.D.3d 1262, 1263
, lv denied ___ N.Y.3d ___ [Nov. 29, 2019];
People v Hunt, 176 A.D.3d 1253, 1253-1254 ).
Additionally, defendant executed a detailed written waiver in
open court, which he reviewed with the assistance of counsel
and assured the court that he had read and understood
(see People v Stebbins, 171 A.D.3d 1395, 1396
, lv denied 33 N.Y.3d 1108');">33 N.Y.3d 1108 ; People
v Johnson, 170 A.D.3d 1274, 1275 ; People v
Taft, 169 A.D.3d 1266, 1267 , lv denied
33 N.Y.3d 1074');">33 N.Y.3d 1074 ). Under these circumstances, we find
that defendant knowingly, intelligently and voluntarily
waived his right to appeal. In light of the valid appeal
waiver, defendant's challenge to the severity of the
agreed-upon sentence has been foreclosed (see People v
Brassard, 175 A.D.3d 1723, 1724 ; People v
Bayne, 175 A.D.3d 1722, 1723 ; People v
Cannelli, 173 A.D.3d 1567, 1568 ).
defendant's challenge to the voluntariness of his plea
and his ineffective assistance of counsel claim to the extent
that it impacts the voluntariness of his plea survive his
valid appeal waiver, these issues are unpreserved for our
review as the record does not reflect that defendant made an
appropriate postallocution motion, despite having ample
opportunity to do so prior to sentencing (see People v
Horton, 173 A.D.3d 1342, 1343 , lv denied
34 N.Y.3d 932');">34 N.Y.3d 932 ; People v Freeman, 169 A.D.3d
1115, 1116 , lv denied 33 N.Y.3d 1069');">33 N.Y.3d 1069 ;
People v Dickerson, 168 A.D.3d 1194, 1195 ).
Additionally, as defendant did not make any statements during
the plea colloquy or at sentencing that were inconsistent
with his guilt or that otherwise called into question the
voluntariness of his plea, the narrow exception to the
preservation requirement is inapplicable (see People v
Pastor, 28 N.Y.3d 1089, 1090-1091 ; People v
Lopez, 71 N.Y.2d 662, 666 ). We also note that
many of defendant's allegations of ineffective
assistance, such as counsel's failure to advise him of
certain defenses, involve matters outside of the record and
are, thus, more properly pursued through a CPL article 440
motion (see People v Mastro, 174 A.D.3d 1232, 1233
; People v White, 172 A.D.3d 1822, 1824
, lv denied 33 N.Y.3d 1110');">33 N.Y.3d 1110 ; People
v Retell, 164 A.D.3d 1501, 1502 ).
challenge to the amount of restitution ordered is not
precluded by the appeal waiver, as the amount was not
specifically set in the plea agreement (see People v
Hunter, 175 A.D.3d 1601, 1604 ; People v
Mahon, 148 A.D.3d 1303, 1304 ; People v
Ortiz, 148 A.D.3d 1291, 1292 ). Nevertheless, this
issue is also unpreserved, as defendant did not request a
restitution hearing and ultimately agreed to the amount
awarded to the victim (see People v Horne, 97 N.Y.2d
404, 414 n 3 ; People v Perry, 168 A.D.3d
1287, 1288 ; People v Miller, 126 A.D.3d 1233,
1234 , lv denied 25 N.Y.3d 1168');">25 N.Y.3d 1168 ).
P.J., Egan Jr., Aarons and ...