Opinion
109766
11-07-2019
The PEOPLE of the State of New York, Respondent, v. Matthew HAWKINS, Appellant.
Tara B. Wells, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Tara B. Wells, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark and Pritzker, JJ.
MEMORANDUM AND ORDER
Clark, J.
Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered August 10, 2017, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and burglary in the third degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and entered a plea of guilty to burglary in the second and third degrees, as charged in a superior court information. Defendant also orally waived his right to appeal and signed a written waiver of appeal in open court. In accordance with the plea agreement, defendant was sentenced, as a second felony offender, to concurrent prison sentences, the maximum of which was 10 years followed by five years of postrelease supervision, and ordered to pay restitution. Defendant appeals.
Defendant's unchallenged oral and written waiver of appeal precludes his claims of ineffective assistance of counsel except to the extent that the claims impacted upon the voluntariness of his guilty plea (see People v. Clapper, 133 A.D.3d 1037, 1038, 20 N.Y.S.3d 452 [2015], lv denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ). However, defendant failed to preserve such claims for our review through an appropriate postallocution motion to withdraw his guilty plea, despite ample opportunity to do so prior to sentencing (see CPL 220.60[3] ; People v. Horton, 173 A.D.3d 1342, 1343–1344, 102 N.Y.S.3d 761 [2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 701, 133 N.E.3d 401 [2019] ; People v. Prince, 170 A.D.3d 1380, 1381–1382, 96 N.Y.S.3d 386 [2019] ). Moreover, the narrow exception to the preservation requirement is inapplicable, as defendant made no statements that were inconsistent with his guilt or otherwise called into question the voluntariness of his guilty 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] ; People v. Prince, 170 A.D.3d at 1382, 96 N.Y.S.3d 386 ).
Egan Jr., J.P., Lynch and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.