Opinion
2013-06-6
The PEOPLE of the State of New York, Respondent, v. Colby SYLVAN, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: PETERS, P.J., ROSE, McCARTHY and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 16, 2011, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree.
Following jury selection, and in satisfaction of an eight-count indictment, defendant pleaded guilty to attempted robbery in the first degree, waived his right to appeal his conviction and sentence and thereafter was sentenced, as a second felony offender, to 13 years in prison followed by five years of postrelease supervision. Defendant now appeals contending, among other things, that the victims' pretrial identification of him should have been suppressed as unduly suggestive.
Initially, to the extent that defendant's brief may be read as challenging the validity of his waiver of the right to appeal, we find defendant's argument to be unpersuasive. The plea colloquy reflects that County Court explained the significance of the appeal waiver to defendant, who professed his understanding thereof and thereafter executed a written waiver of the right to appeal. Under such circumstances, we find defendant's waiver to be knowing, intelligent and voluntary ( see People v. Carbone, 101 A.D.3d 1232, 1233, 956 N.Y.S.2d 221 [2012] ).
Defendant's remaining arguments do not warrant extended discussion. The valid waiver of appeal precludes defendant's challenge to County Court's denial of his motion to suppress certain identification testimony ( see People v. Mattison, 94 A.D.3d 1157, 1158, 941 N.Y.S.2d 528 [2012];People v. Spruill, 90 A.D.3d 1242, 1243, 934 N.Y.S.2d 355 [2011],lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012];People v. Moreno, 86 A.D.3d 863, 864, 927 N.Y.S.2d 487 [2011],lv. denied17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011] ), as well as his claim that the sentence imposed was harsh and excessive ( see People v. Mattison, 94 A.D.3d at 1158, 941 N.Y.S.2d 528;People v. Moreno, 86 A.D.3d at 864, 927 N.Y.S.2d 487). Any argument regarding the factual sufficiency of the underlying plea also is foreclosed by defendant's valid waiver and, further, is unpreserved for our review absent evidence that defendant moved to withdraw his plea or vacate the judgment of conviction ( see People v. Leone, 101 A.D.3d 1352, 1352, 956 N.Y.S.2d 289 [2012],lv. denied21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893 [Apr. 30, 2013];People v. Benson, 100 A.D.3d 1108, 1108, 953 N.Y.S.2d 380 [2012] ). Although defendant's challenge to the voluntariness of his plea survives the foregoing waiver, it, too, is unpreserved for our review in the absence of an appropriate postallocution motion ( see People v. Revette, 102 A.D.3d 1065, 1065–1066, 958 N.Y.S.2d 805 [2013];People v. Martinez–Velazquez, 89 A.D.3d 1318, 1319, 932 N.Y.S.2d 908 [2011] ). Further, the narrow exception to the preservation requirement was not triggered here, “as nothing in the plea allocution cast doubt on his guilt or negated an essential element of the crime” ( People v. Williams, 101 A.D.3d 1174, 1174, 959 N.Y.S.2d 551 [2012];see People v. McGowan, 98 A.D.3d 1192, 1193, 950 N.Y.S.2d 916 [2012] ).
Finally, although defendant now contends that counsel pressured him to plead guilty and failed to properly investigate his case, explore potential defenses or adequately confer with him, such claims implicate matters outside the record and, as such, are more properly considered in the context of a CPL article 440 motion ( see People v. Carbone, 101 A.D.3d at 1234–1235, 956 N.Y.S.2d 221;People v. Terpening, 79 A.D.3d 1367, 1368, 912 N.Y.S.2d 776 [2010],lv. denied16 N.Y.3d 837, 921 N.Y.S.2d 201, 946 N.E.2d 189 [2010] ). The balance of defendant's ineffectiveassistance of counsel claim—to the extent that it impacts upon the voluntariness of his plea—survives defendant's otherwise valid waiver of the right to appeal but, again, in the absence of an appropriate motion, is unpreserved for our review ( see People v. Walton, 101 A.D.3d 1489, 1490, 956 N.Y.S.2d 705 [2012],lv. denied20 N.Y.3d 1105 [2013];People v. Boone, 101 A.D.3d 1358, 1359, 956 N.Y.S.2d 310 [2013],lv. denied20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013] ). We have examined defendant's remaining contentions and find them to be lacking in merit.
Defendant expressly acknowledged—prior to pleading guilty—that he had discussed the immigration consequences of such a plea with counsel. To the extent that defendant now deems that discussion to have been inadequate, this argument also is best addressed in a motion pursuant to CPL article 440 ( see People v. Drammeh, 100 A.D.3d 650, 651, 953 N.Y.S.2d 274 [2012],lvs. denied20 N.Y.3d 1098, 1104, 965 N.Y.S.2d 793, 800, 988 N.E.2d 531, 538 [2013];People v. Reynoso, 88 A.D.3d 1162, 1162–1163, 931 N.Y.S.2d 430 [2011] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., ROSE and McCARTHY, JJ., concur.