Opinion
110096
04-30-2020
The PEOPLE of the State of New York, Respondent, v. Jalah DANZY, Appellant.
Aaron A. Louridas, Delmar, for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Before: Clark, J.P., Mulvey, Devine, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Clark, J.P.
Appeal from a judgment of the Supreme Court (McDonough, J.), rendered November 18, 2016 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
In September 2015, defendant was charged by indictment with two counts each of burglary in the second degree and attempted robbery in the second degree. Following a hearing, Supreme Court denied defendant's motion to suppress certain of his pre-Miranda statements to law enforcement. Defendant thereafter entered a guilty plea to one count of burglary in the second degree and waived his right to appeal in full satisfaction of the indictment, as well as numerous other charges pending against him. In accordance with the plea agreement, defendant was sentenced, as a second felony offender, to a prison term of 12 years followed by five years of postrelease supervision. He appeals.
Initially, we find no merit to defendant's challenge to the validity of his appeal waiver. Supreme Court advised defendant that the waiver of his right to appeal was a condition of his plea agreement. Supreme Court thereafter explained that the waiver of the right to appeal was separate and apart from the trial-related rights that he was forfeiting by pleading guilty. Defendant indicated that he understood the separate and distinct nature of the appeal waiver and that he was in fact agreeing to waive that right. Defendant then executed a written appeal waiver in open court, which he reviewed with counsel and acknowledged that he had read and understood. That written waiver stated that, although defendant ordinarily retained the right to appeal, he was waiving it in consideration of the plea agreement.
Under all of the circumstances, we are satisfied that defendant, then a 27–year–old second felony offender with considerable experience with the criminal justice system (see People v. Lambert, 151 A.D.3d 1119, 1119, 55 N.Y.S.3d 526 [2017], lv denied 29 N.Y.3d 1092, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ), knowingly, voluntarily and intelligently waived his right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 11–12, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ; People v. Salmon, 179 A.D.3d 1404, 1404, 117 N.Y.S.3d 764 [2020] ; People v. Almonte, 179 A.D.3d 1222, 1223, 116 N.Y.S.3d 782 [2020] ). In light of the valid appeal waiver, defendant's various challenges to the denial of his suppression motion and to the severity of the agreed-upon sentence are foreclosed (see People v. Ramos, 179 A.D.3d 1395, 1396, 118 N.Y.S.3d 291 [2020] ; People v. Inman, 177 A.D.3d 1167, 1168, 115 N.Y.S.3d 148 [2019] ; People v. Johnson, 153 A.D.3d 1031, 1032, 60 N.Y.S.3d 580 [2017], lv denied 30 N.Y.3d 980, 67 N.Y.S.3d 583, 89 N.E.3d 1263 [2017] ).
Defendant's challenge to the voluntariness of his plea, which is premised entirely on the alleged ineffective assistance of counsel, survives his valid appeal waiver, but is unpreserved for this Court's review absent evidence of an appropriate postallocution motion (see People v. Sabin, 179 A.D.3d 1401, 1402, 118 N.Y.S.3d 769 [2020] ; People v. White, 172 A.D.3d 1822, 1823–1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ). Additionally, the narrow exception to the preservation requirement is inapplicable, as defendant did not make any statements that were inconsistent with his guilt, negated an element of the crime or cast doubt upon the voluntariness of his plea (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). As to his direct claim of ineffective assistance of counsel, defendant's assertions that his various attorneys failed to communicate with him, inform him of plea offers and investigate an alibi, as well as his claim that he was pressured into pleading guilty, involve matters outside of the record and are, thus, more properly the subject of a CPL article 440 motion (see People v. Derrig, 175 A.D.3d 1675, 1676, 106 N.Y.S.3d 637 [2019], lv denied 34 N.Y.3d 1127, 118 N.Y.S.3d 540, 141 N.E.3d 496 [2020] ; People v. Williams, 163 A.D.3d 1172, 1173, 81 N.Y.S.3d 636 [2018], lv denied 32 N.Y.3d 1009, 86 N.Y.S.3d 768, 111 N.E.3d 1124 [2018] ). Other alleged deficiencies, such as the quality of representation afforded to defendant during the suppression hearing, do not implicate the voluntariness of his plea and are therefore precluded by the valid appeal waiver (see People v. Trombley, 91 A.D.3d 1197, 1201, 937 N.Y.S.2d 665 [2012], lv denied 21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ; People v. Santos–Rivera, 86 A.D.3d 790, 791–792, 927 N.Y.S.2d 236 [2011], lv denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ). Lastly, although defendant's assertion that counsel failed to adequately explain the ramifications of the appeal waiver would impact the voluntariness of defendant's plea, to the extent that allegation may be resolved on the record before us (see People v. Martinez, 166 A.D.3d 1376, 1377, 86 N.Y.S.3d 756 [2018], lv denied 32 N.Y.3d 1207, 99 N.Y.S.3d 208, 122 N.E.3d 1121 [2019] ), it has not been preserved for our review (see People v. Schmidt, 179 A.D.3d 1384, 1385, 114 N.Y.S.3d 737 [2020] ; People v. Mastro, 174 A.D.3d 1232, 1233, 105 N.Y.S.3d 715 [2019] ).
Mulvey, Devine, Pritzker and Colangelo, JJ., concur.
ORDERED that judgment is affirmed.