Opinion
10-30-2014
The PEOPLE of the State of New York, Respondent, v. Joseph GUYETTE, Appellant.
Barrett D. Mack, Albany, for appellant. Karen A. Heggen, Acting District Attorney, Ballston Spa (Ann C. Sullivan of counsel), for respondent.
Barrett D. Mack, Albany, for appellant.
Karen A. Heggen, Acting District Attorney, Ballston Spa (Ann C. Sullivan of counsel), for respondent.
Before: STEIN, J.P., McCARTHY, EGAN JR., LYNCH and CLARK, JJ.
Opinion
EGAN JR., J.Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered March 25, 2013, convicting defendant upon his plea of guilty of the crimes of promoting a sexual performance by a child (10 counts) and possessing a sexual performance by a child (10 counts).
In full satisfaction of a 74–count indictment (as well as any additional charges stemming from the images seized from defendant's residence in April 2011), defendant pleaded guilty to 10 counts of promoting a sexual performance by a child and 10 counts of possessing a sexual performance by a child and waived his right to appeal. County Court denied defendant's subsequent request to redact certain information from the presentence investigation report and sentenced defendant to the agreed-upon prison term of 1 to 3 years on each count—said sentences to run concurrently. Defendant now appeals.
To the extent that defendant contends that his waiver of the right to appeal was invalid, we disagree. A review of the plea colloquy reveals that County Court explained the separate and distinct nature of such waiver and, further, confirmed that defendant understood the written waiver that he executed following consultation with counsel. Accordingly, we conclude that defendant's waiver of the right to appeal his conviction and sentence was knowing, intelligent and voluntary (see People v. Munger, 117 A.D.3d 1343, 1343, 987 N.Y.S.2d 118 [2014], lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014] ; People v. Fligger, 117 A.D.3d 1343, 1344, 986 N.Y.S.2d 689 [2014], lv. denied 23 N.Y.3d 1061, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014] ; People v. Graves, 113 A.D.3d 998, 999, 978 N.Y.S.2d 918 [2014], lv. denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ). In light of defendant's valid waiver, he is precluded from challenging County Court's suppression and Molineux rulings (see People v. Lopez, 118 A.D.3d 1190, 1190, 987 N.Y.S.2d 266 [2014] ; People v. Mattison, 94 A.D.3d 1157, 1158, 941 N.Y.S.2d 528 [2012] ), as well as County Court's denial of his application to redact certain statements and information from the presentence investigation report (see People v. Abdul, 112 A.D.3d 644, 645, 976 N.Y.S.2d 187 [2013], lv. denied 22 N.Y.3d 1136, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ; People v. Moquette, 200 A.D.2d 854, 854, 606 N.Y.S.2d 820 [1994], lv. denied 83 N.Y.2d 874, 613 N.Y.S.2d 135, 635 N.E.2d 304 [1994] ).
Although defendant's challenge to the voluntariness of his plea survives his valid waiver of appeal, this issue nonetheless is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Dozier, 115 A.D.3d 1001, 1001, 981 N.Y.S.2d 626 [2014] ; People v. Sylvan, 107 A.D.3d 1044, 1045, 968 N.Y.S.2d 628 [2013], lv. denied 22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619 [2014] ). Moreover, the narrow exception to the preservation requirement was not implicated here, as defendant did not make any statements during his plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Hare, 110 A.D.3d 1117, 1117, 972 N.Y.S.2d 361 [2013] ; People v. Revette, 102 A.D.3d 1065, 1066, 958 N.Y.S.2d 805 [2013] ). In any event, defendant's present claim—that he is “borderline mentally retarded”—finds no support in the record. Notably, defendant expressly denied taking “any kind of drugs or medication” or “suffering from any kind of illness that would make it difficult for [him] to understand what [was] being said” during the plea colloquy, and our review of the record fails to disclose any indication that defendant suffered from an intellectual impairment that impacted the voluntariness of his plea (cf. People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [2014] ; People v. Rought, 90 A.D.3d 1247, 1248, 934 N.Y.S.2d 617 [2011], lv. denied 18 N.Y.3d 962, 944 N.Y.S.2d 490, 967 N.E.2d 715 [2012] ).
The letter authored by defendant's father seeking to withdraw defendant's plea fails to constitute an appropriate postallocution motion.
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Finally, although defendant now contends that counsel failed to properly advance and document his asserted intellectual impairments, this claim implicates matters outside the record and, as such, is more properly considered in the context of a CPL article 440 motion (cf. People v.
McCray, 96 A.D.3d 1160, 1161, 946 N.Y.S.2d 303 [2012], lv. denied 19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012] ; People v. Watson, 61 A.D.3d 1217, 1218, 876 N.Y.S.2d 786 [2009], lv. denied 12 N.Y.3d 930, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009] ). The balance of defendant's ineffective assistance of counsel claim—to the extent that it impacts upon the voluntariness of his plea—survives defendant's waiver of the right to appeal but is similarly unpreserved in the absence of an appropriate postallocution motion (see People v. Lazore, 102 A.D.3d 1017, 1017–1018, 961 N.Y.S.2d 325 [2013] ; People v. Benson, 100 A.D.3d 1108, 1109, 953 N.Y.S.2d 380 [2012] ). Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
ORDERED that the judgment is affirmed.
STEIN, J.P., McCARTHY, LYNCH and CLARK, JJ., concur.