Opinion
02-09-2017
The PEOPLE of the State of New York, Respondent, v. Robert J. HALL, Appellant.
Salvatore Adamo, Albany, for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Salvatore Adamo, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, EGAN Jr., ROSE and MULVEY, JJ.
MULVEY, J.Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered October 21, 2014, convicting defendant upon his plea of guilty of the crime of promoting a sexual performance by a child.
Pursuant to a plea agreement, defendant waived indictment and pleaded guilty to promoting a sexual performance by a child as charged in a superior court information. The plea agreement also satisfied other pending charges and included a waiver of appeal. Consistent with that agreement, County Court imposed a prison sentence of 2 ½ years with 10 years of postrelease supervision. Defendant appeals.
When the People recited the plea terms, they stated that the promised sentence was 3 ½ years in prison, but, when County Court stated the terms during the allocution, it committed to a prison term of 2 ½ years and imposed that promised sentence.
We affirm. Initially, contrary to defendant's claim, his combined oral and written appeal waiver was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Toledo, 144 A.D.3d 1332, 1332, 40 N.Y.S.3d 680 [2016] ). In that regard, defendant was advised that an appeal waiver was a condition of the plea and of its separate and distinct nature (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Defendant then executed a written waiver of appeal in open court after consulting with his attorney, indicating that he understood it (see id. ; People v. Toledo, 144 A.D.3d at 1333, 40 N.Y.S.3d 680). Given the valid appeal waiver, defendant's challenge to the sentence as harsh and excessive is precluded (see People v. Lopez, 6 N.Y.3d at 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Dickson–Eason, 143 A.D.3d 1013, 1014, 38 N.Y.S.3d 637 [2016], lv. denied 28 N.Y.3d 1123, ––– N.Y.S.3d ––––, –––N.E.3d –––– [2016] ). While his challenge to the plea as involuntary survives the appeal waiver, it was not preserved by an appropriate postallocution motion, and defendant made no statements during the plea colloquy that triggered the exception to the preservation requirement (see People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Austin, 141 A.D.3d 956, 957, 35 N.Y.S.3d 580 [2016] ). Were the issue properly preserved, we would find that the plea was knowing, voluntary and intelligent (see People v. Fiumefreddo, 82 N.Y.2d 536, 546–548, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ).
Defendant next claims that he was denied the effective assistance of counsel due to counsel's failure to move to suppress his statements to police at his residence after the execution of a search warrant following an undercover investigation. While this claim survives his appeal waiver to the extent that it implicates the voluntariness of his plea, it is unpreserved for our review (see People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [2016] ). "In any event, the failure to request a suppression hearing, standing alone, does not establish that defense counsel provided ineffective assistance" (People v. Cooper, 126 A.D.3d 1046, 1047–1048, 4 N.Y.S.3d 392 [2015] [citation omitted], lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ), "particularly in the absence of any basis upon which to conclude that a defendant had a colorable claim or that counsel's actions were not premised upon a legitimate strategy" (People v. Soprano, 135 A.D.3d 1243, 1243–1244, 23 N.Y.S.3d 592 [2016] [internal quotation marks and citation omitted], lv. denied 27 N.Y.3d 1007, 38 N.Y.S.3d 116, 59 N.E.3d 1228 [2016] ). On the limited record before us, defendant has not demonstrated that he had a viable claim for suppression of his statement or that counsel lacked a strategic reason for proceeding without a pretrial motion to suppress. Further, defendant assured County Court during the plea allocution that he had sufficient time to speak with his attorney about the charges, any defenses and the plea offer and that he was satisfied with counsel's representation and defendant expressly waived any pretrial hearings; counsel secured a favorable plea deal with reduced sentencing that resolved other pending charges, a deal which may not have been available after a suppression hearing. Thus, were the issue preserved, we would find that the record does not support defendant's claim that he was denied meaningful representation (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Benevento, 91 N.Y.2d 708, 712–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Cooper, 126 A.D.3d at 1048, 4 N.Y.S.3d 392 ).
To the extent that defendant's claim relies upon matters outside the record on appeal, they are more properly raised in a motion to vacate pursuant to CPL article 440 (see People v. Perkins, 140 A.D.3d 1401, 1403, 33 N.Y.S.3d 584 [2016], lv. denied 28 N.Y.3d 1126, – ––N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ).
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ORDERED that the judgment is affirmed.
PETERS, P.J., McCARTHY, EGAN JR. and ROSE, JJ., concur.