Opinion
111847
12-07-2023
The PEOPLE of the State of New York, Respondent, v. Michael ATKINS, Appellant.
Craig S. Leeds, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Craig S. Leeds, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Clark, J.P., Aarons, Reynolds Fitzgerald, McShan and Mackey, JJ.
MEMORANDUM AND ORDER
Clark, J.P. Appeal from a judgment of the Supreme Court (Kathleen B. Hogan, J.), rendered March 6, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
In satisfaction of a 12–count indictment stemming from drug-related possession and sales on multiple occasions, defendant pleaded guilty to the reduced, amended charge of attempted criminal sale of a controlled substance in the third degree. Pursuant to the plea agreement, which included a waiver of appeal, defendant was promised a prison sentence of four years to be followed by a period of postrelease supervision (hereinafter PRS) of between 1½ and 3 years. Supreme Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon prison term, to be followed by a period of PRS of three years. Defendant appeals.
Initially, defendant's challenge to the factual sufficiency of the plea allocution is precluded by his unchallenged appeal waiver (see People v. Sablan, 177 A.D.3d 1024, 1027, 114 N.Y.S.3d 128 [3d Dept. 2019], lv denied 34 N.Y.3d 1132, 118 N.Y.S.3d 523, 141 N.E.3d 479 [2020] ). While defendant's challenge to the voluntariness of his plea survives the unchallenged waiver of appeal (see People v. Lomack, 217 A.D.3d 1281, 1282, 192 N.Y.S.3d 703 [3d Dept. 2023], lv denied 40 N.Y.3d 951, 195 N.Y.S.3d 678, 217 N.E.3d 699 [2023] ), it is unpreserved for our review in the absence of an appropriate postallocution motion raising these claims, and the narrow exception to the preservation rule is inapplicable (see People v. Lopez, 71 N.Y.2d 662, 665–668, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. White, 217 A.D.3d 1283, 1284, 192 N.Y.S.3d 316 [3d Dept. 2023] ). To the extent that defendant's claim is based upon his negative response to a compound question posed by Supreme Court during the plea allocution, the import of which response is subject to interpretation, we are satisfied from a reading of the plea proceedings as a whole that defendant's guilty plea was "a knowing, voluntary and intelligent choice among alternative courses of action" ( People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). To that end, Supreme Court clearly advised defendant of the plea terms, including the trial rights that he was relinquishing by his plea and the consequences of the plea. Further, the court afforded defendant multiple opportunities to confer with defense counsel to ensure that he understood the plea terms and his rights. Moreover, defendant pleaded guilty to a lesser crime as part of a plea bargain and was not required to personally recite its elements or engage in a factual recitation (see People v. Goldstein, 12 N.Y.3d 295, 300–301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009] ; People v. Sims, 207 A.D.3d 882, 884, 172 N.Y.S.3d 195 [3d Dept. 2022], lv granted 39 N.Y.3d 1080, 184 N.Y.S.3d 278, 204 N.E.3d 1060 [2023] ). Contrary to his claim, the record reflects that defendant understood that he was entering a guilty plea only to a reduced charge under count one, as amended on consent, and defense counsel's statement that the plea would satisfy all charges in the indictment, while inartfully phrased, did not misrepresent the plea terms.
Defendant's further claim that he received ineffective assistance of counsel, to the extent that it implicates the voluntariness of his plea, also survives the unchallenged waiver of appeal but is likewise unpreserved (see People v. Graham, 214 A.D.3d 1256, 1257, 184 N.Y.S.3d 635 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 760, 215 N.E.3d 1201 [2023] ). In any event, defendant's claims essentially mirror those raised and found to be meritless on his challenge to the voluntariness of his guilty plea. Moreover, defense counsel pursued pretrial motions, secured a very favorable plea deal that avoided a potential 15–year term of imprisonment (see Penal Law §§ 70.25[2] ; 70.70[4][b][i]), advocated – albeit unsuccessfully – for the minimum period of PRS based upon defendant's age and apparent remorse (see Penal Law § 70.45[2][d] ) and "nothing in the record casts doubt upon the apparent effectiveness of counsel" ( People v. Fish, 208 A.D.3d 1546, 1549, 175 N.Y.S.3d 602 [3d Dept. 2022] [internal quotation marks and citations omitted]; accord People v. Graham, 214 A.D.3d at 1257, 184 N.Y.S.3d 635 ). Finally, defendant's challenge to the agreed-upon prison term and lawful sentence (see Penal Law §§ 70.45[2][d] ; 70.70[4][b][ii]) as unduly harsh or severe is precluded by his waiver of appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Graham , 214 A.D.3d at 1258, 184 N.Y.S.3d 635 ).
Aarons, Reynolds Fitzgerald, McShan and Mackey, JJ., concur.
ORDERED that the judgment is affirmed.