Opinion
09-29-2016
The PEOPLE of the State of New York, Respondent, v. Georel LLOYD, Appellant.
Aaron A. Louridas, Delmar, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., LYNCH, ROSE and AARONS, JJ.
Opinion
AARONS, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered May 15, 2012 in Schenectady County, convicting defendant upon his plea of guilty of the crime of murder in the second degree.
Defendant pleaded guilty to murder in the second degree after he fatally shot a young man. As part of the plea agreement, he waived his right to appeal both orally and in writing. He was subsequently sentenced, in accordance with the terms of the plea agreement, to 20 years to life in prison. Defendant now appeals.
Initially, we find that defendant's waiver of the right to appeal was invalid inasmuch as he was not advised that this right was separate and distinct from the other rights that he was forfeiting by pleading guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Gonzalez, 138 A.D.3d 1353, 1354, 28 N.Y.S.3d 919 [2016] ; People v. Lemon, 137 A.D.3d 1422, 1423, 27 N.Y.S.3d 726 [2016], lv. denied 27 N.Y.3d 1135, 2016 WL 3767657 [2016] ). Although his appeal waiver, even if valid, would not preclude his challenge to the voluntariness of his guilty plea, this challenge has not been preserved for our review as the record does not disclose that he made an appropriate postallocution motion (see People v. Larock, 139 A.D.3d 1241, 1242, 31 N.Y.S.3d 665 [2016], lv. denied 28 N.Y.3d 932, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Daniels, 139 A.D.3d 1256, 1256, 32 N.Y.S.3d 676 [2016] ). Notably, the exception to the preservation requirement is inapplicable here as defendant did not make any statements during the plea proceedings that cast doubt upon his guilt (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Goldman, 139 A.D.3d 1111, 1112, 30 N.Y.S.3d 757 [2016] ; People v. Smith, 123 A.D.3d 1375, 1376, 999 N.Y.S.2d 276 [2014], lv. denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015] ). Defendant's further contention that he was denied the effective assistance of counsel is, to the extent that it impacts the voluntariness of his plea, similarly unpreserved in the absence of an appropriate postallocution motion (see People v. Perkins, 140 A.D.3d 1401, 1402–1403, 33 N.Y.S.3d 584 [2016] ; People v. Beverly, 137 A.D.3d 1421, 1422, 27 N.Y.S.3d 724 [2016], lv. denied 27 N.Y.3d 1128, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). Finally, contrary to defendant's claim, we do not find that the sentence is harsh or excessive. Notwithstanding defendant's young age, difficult childhood and lack of criminal record, the crime was both violent and senseless in nature, and the sentence, which was less than the statutorily authorized maximum (see Penal Law § 70.00[2][a] ; [3][a] [i] ), was agreed to by defendant as part of the plea agreement. Thus, we find no extraordinary circumstances or any abuse of discretion warranting a modification of the sentence in the interest of justice (see People v. Benson, 119 A.D.3d 1145, 1148–1149, 990 N.Y.S.2d 321 [2014], lv. denied 24 N.Y.3d 1118, 3 N.Y.S.3d 759, 27 N.E.3d 473 [2015] ).
ORDERED that the judgment is affirmed.
GARRY, J.P., EGAN JR., LYNCH and ROSE, JJ., concur.