Opinion
105692.
02-11-2015
The PEOPLE of the State of New York, Respondent, v. Charles E. BROWN, Appellant.
Samuel D. Castellino, Big Flats, for appellant, and appellant pro se. Gwen Wilkinson, District Attorney, Ithaca (Dan Johnson of counsel), for respondent.
Samuel D. Castellino, Big Flats, for appellant, and appellant pro se.
Gwen Wilkinson, District Attorney, Ithaca (Dan Johnson of counsel), for respondent.
Before: LAHTINEN, J.P., EGAN JR., LYNCH and DEVINE, JJ.
Opinion
LAHTINEN, J.P.Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered September 26, 2012, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.In full satisfaction of a three-count indictment, defendant pleaded guilty to attempted burglary in the second degree and waived his right to appeal his conviction and sentence. County Court thereafter sentenced defendant to three years in prison and three years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal was valid. The record reflects that County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea and explained the consequences of the waiver. Defendant thereafter affirmed his understanding of the waiver and executed a counseled written waiver (see People v. Chavis, 117 A.D.3d 1193, 1193–1194, 987 N.Y.S.2d 111 [2014] ; People v. Campbell, 114 A.D.3d 996, 997, 979 N.Y.S.2d 874 [2014] ). His valid appeal waiver precludes from our review his contention that his sentence is harsh and excessive (see People v. White, 119 A.D.3d 1286, 1287, 990 N.Y.S.2d 726 [2014] ; People v. Brown, 115 A.D.3d 1115, 1115, 982 N.Y.S.2d 205 [2014], lv. denied 24 N.Y.3d 959, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ).
Defendant's claim that his plea should be vacated due to County Court's failure to inquire as to a potential intoxication defense is not preserved for our review, as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Duggins, 114 A.D.3d 1001, 1001–1002, 979 N.Y.S.2d 877 [2014], lvs. denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014], 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ; People v. Phillips, 30 A.D.3d 911, 819 N.Y.S.2d 129 [2006], lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006] ). Moreover, the narrow exception to the preservation rule is not applicable, as defendant did not make any statements during the plea colloquy that cast significant doubt upon his guilt or obligated County Court to inquire as to a potential intoxication defense (see People v. Duggins, 114 A.D.3d at 1002, 979 N.Y.S.2d 877 ; People v. Pearson, 110 A.D.3d 1116, 1116, 972 N.Y.S.2d 359 [2013] ). Finally, defendant's claim that he received ineffective assistance of counsel by counsel's failure to advise him of a possible intoxication defense and to properly investigate his case implicates matters outside of the record and, as such, is more properly considered in the context of a CPL article 440 motion (see People v. Sylvan, 107 A.D.3d 1044, 1045–1046, 968 N.Y.S.2d 628 [2013], lv. denied 22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619 [2014] ; People v. Carbone, 101 A.D.3d 1232, 1234–1235, 956 N.Y.S.2d 221 [2012] ).
ORDERED that the judgment is affirmed.
EGAN JR., LYNCH and DEVINE, JJ., concur.