Opinion
106608.
02-11-2016
The PEOPLE of the State of New York, Respondent, v. Dushawn GRIFFITH, Appellant.
William T. Morrison, Albany, for appellant. P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
William T. Morrison, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Opinion
McCARTHY, J.P.
Appeal from a judgment of the Supreme Court (McDonough, J.), rendered September 20, 2013 in Albany County, convicting defendant upon his plea of guilty of the crime of reckless endangerment in the first degree.
Defendant was charged with a number of crimes arising from an incident in which he forced his girlfriend into his vehicle and then engaged in a high speed chase with police down a city street. In satisfaction of these and other potential charges, he pleaded guilty to reckless endangerment in the first degree and waived his right to appeal. In accordance with the plea agreement, defendant was sentenced as a second felony offender to 2 to 4 years in prison. He now appeals.
Defendant claims that his guilty plea was factually deficient as depraved indifference, a necessary element of the crime of reckless endangerment in the first degree, was not established during the plea allocution. This claim, however, is not preserved for our review given that defendant did not make an appropriate postallocution motion (see People v. Mayo, 130 A.D.3d 1099, 1100, 12 N.Y.S.3d 389 2015; People v. Bryant, 128 A.D.3d 1223, 1224, 10 N.Y.S.3d 341 2015, lv. denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 2015 ). Moreover, the exception to the preservation requirement is inapplicable inasmuch as defendant did not make any statements during the plea colloquy that negated an essential element of the crime (see People v. Mayo, 130 A.D.3d at 1100, 12 N.Y.S.3d 389; People v. Devault, 124 A.D.3d 1140, 1141, 1 N.Y.S.3d 579 2015, lv. denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 2015 ). We note that it was not necessary for defendant to engage in a factual recitation of the elements of the crime and that his affirmative responses to the court's questions were sufficient to establish his guilt (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; People v. Hyson, 56 A.D.3d 890, 891, 867 N.Y.S.2d 245 2008, lv. denied 12 N.Y.3d 758, 876 N.Y.S.2d 710, 904 N.E.2d 847 2009 ).
Although defendant executed a waiver of his right to appeal, the waiver does not preclude his challenge to the guilty plea given that he was not advised of the separate and distinct nature of the rights forfeited by the waiver and, therefore, the waiver is invalid (
Defendant further asserts that defense counsel misadvised him during the course of the proceedings and that he was, therefore, denied the effective assistance of counsel. That claim is based on advice that counsel gave outside the record and is more properly the subject of a CPL article 440 motion (see People v. Pickett, 128 A.D.3d at 1276, 9 N.Y.S.3d 737; People v. Goldston, 126 A.D.3d 1175, 1178, 5 N.Y.S.3d 600 2015, lv. denied 25 N.Y.3d 1201, 16 N.Y.S.3d 524, 37 N.E.3d 1167 2015 ).
ORDERED that the judgment is affirmed.
GARRY, ROSE and DEVINE, JJ., concur.
see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 2006; People v. Pope, 129 A.D.3d 1389, 1390, 14 N.Y.S.3d 512 2015 ).