Opinion
107838 107839
11-29-2018
The PEOPLE of the State of New York, Respondent, v. Hector MARTINEZ, Appellant.
Timothy S. Brennan, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Daniel Young, Law Intern), for respondent.
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Daniel Young, Law Intern), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Rumsey, J.
Defendant pleaded guilty to criminal contempt in the second degree, criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree in full satisfaction of three indictments that had been consolidated. He waived his right to appeal and, consistent with the plea agreement, County Court sentenced defendant, as a second felony offender, to an aggregate prison term of six years to be followed by three years of postrelease supervision. Defendant appeals.
Initially, defendant's combined oral and written waiver of appeal is valid because the record reflects that County Court properly explained the separate and distinct nature of the right to appeal from the trial-related rights that are automatically forfeited by pleading guilty and ascertained that defendant had discussed the appeal waiver with counsel and understood it before he signed the written waiver (see People v. Wood, 161 A.D.3d 1447, 1448, 77 N.Y.S.3d 763 [2018] ; People v. Chaney, 160 A.D.3d 1281, 1282–1283, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). Defendant's claim that his plea was not knowing, voluntary and intelligent survives a valid appeal waiver, but is unpreserved for our review because the record does not indicate that he made an appropriate postallocution motion (see People v. Jackson, 163 A.D.3d 1360, 1360–1361, 81 N.Y.S.3d 672 [2018] ; People v. Wood, 161 A.D.3d at 1449, 77 N.Y.S.3d 763 ), and the narrow exception to the preservation requirement is inapplicable as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or the voluntariness of his plea (see People v. Jackson, 163 A.D.3d at 1361, 81 N.Y.S.3d 672 ; People v. Wood, 161 A.D.3d at 1449, 77 N.Y.S.3d 763 ). Further, defendant's valid appeal waiver forecloses him from challenging the agreed-upon sentence as harsh and excessive (see People v. Nichols, 155 A.D.3d 1186, 1187, 63 N.Y.S.3d 254 [2017] ).
Defendant's contention that he was denied the effective assistance of counsel by counsel's failure to adequately explain the plea agreement survives the appeal waiver to the extent that it impacts the voluntariness of his plea, but is unpreserved for our review because the record does not reflect that he made an appropriate postallocution motion (see People v. White, 164 A.D.3d 959, 960, 82 N.Y.S.3d 247 [2018] ; People v. Robinson, 155 A.D.3d 1252, 1253, 64 N.Y.S.3d 740 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). To the extent that defendant's contention in this respect involves matters outside of the record, it is more appropriately raised in a motion pursuant to CPL article 440 (see People v. Pickett , 128 A.D.3d 1275, 1276, 9 N.Y.S.3d 737 [2015], lvs denied 26 N.Y.3d 930, 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ).
ORDERED that the judgment is affirmed.
McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.