Opinion
110494
03-11-2021
The PEOPLE of the State of New York, Respondent, v. Tyvon HEMINGWAY, Also Known as 7 Minute Man, Appellant.
Linda B. Johnson, Albany, for appellant. Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.
Linda B. Johnson, Albany, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.
Before: Clark, J.P., Aarons, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Colangelo, J.
In 2016, defendant was charged in a 12–count indictment with, among other things, criminal sale of a controlled substance in the second degree after he sold drugs to a confidential informant. In 2017, he was charged in a single-count indictment with criminal possession of a weapon in the second degree. In satisfaction of both indictments, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and criminal possession of a weapon in the second degree, and purported to waive his right to appeal. In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to seven years in prison followed by three years of postrelease supervision on the controlled substance conviction, and to seven years in prison followed by five years of postrelease supervision on the weapon conviction, which sentences were to run concurrently. Defendant appeals.
1 We affirm. Initially, we find no merit to defendant's claim that his waiver of the right to appeal was invalid. At the outset, County Court advised defendant that the appeal waiver was part of the plea agreement and, after explaining the trial-related rights that he was forfeiting by pleading guilty, the court informed him that the right to appeal was separate and distinct from those rights (see People v. Burnett, 186 A.D.3d 1837, 1837–1838, 129 N.Y.S.3d 344 [2020], lvs denied 36 N.Y.3d 969, 970, 138 N.Y.S.3d 497, 162 N.E.3d 726 [2020] ; People v. Williams, 185 A.D.3d 1352, 1353, 126 N.Y.S.3d 440 [2020], lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 526, 158 N.E.3d 543 [2020] ). Defendant indicated that he understood the ramifications of the waiver and was giving up his right to appeal both the conviction and sentence. He then executed a written waiver in open court after reviewing it with counsel and stated that he understood the waiver form and signed it voluntarily (see People v. Purnell, 186 A.D.3d 1834, 1834, 129 N.Y.S.3d 358 [2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 481, 162 N.E.3d 710 [2020] ; People v. Pugliese, 185 A.D.3d 1358, 1359, 126 N.Y.S.3d 436 [2020] ). Under the circumstances presented, and given that we discern no other infirmities in the waiver (compare People v. Thomas, 34 N.Y.3d 545, 562–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Barrales, 179 A.D.3d 1313, 1314, 118 N.Y.S.3d 263 [2020] ), we conclude that defendant's combined oral and written waiver of the right to appeal was knowing, voluntary and intelligent (see People v. Burnett, 186 A.D.3d at 1838, 129 N.Y.S.3d 344 ; People v. Purnell, 186 A.D.3d at 1834, 129 N.Y.S.3d 358 ). In view of his valid appeal waiver, defendant is precluded from challenging the severity of the sentence (see People v. White, 185 A.D.3d 1355, 1356, 126 N.Y.S.3d 438 [2020], lv denied 36 N.Y.3d 977, 138 N.Y.S.3d 463, 162 N.E.3d 692 [2020] ; People v. Williams, 185 A.D.3d at 1353, 126 N.Y.S.3d 440 ).
2 Defendant further contends that his guilty plea should be vacated as it was not knowing, voluntary and intelligent. Although not precluded by his valid appeal waiver, defendant has failed to preserve this claim for our review as the record does not disclose that he made an appropriate postallocution motion, and the narrow exception to the preservation requirement was not triggered by the statements that he made during the plea colloquy (see People v. Rodriguez, 185 A.D.3d 1233, 1235, 127 N.Y.S.3d 644 [2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 460, 162 N.E.3d 689 [2020] ; People v. Anderson, 184 A.D.3d 1020, 1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 152 N.E.3d 1165 [2020] ). For the same reason, his claim that he was denied the effective assistance of counsel – to the extent that it impacted the voluntariness of his plea – has also not been preserved (see People v. Dickerson, 168 A.D.3d 1194, 1195, 90 N.Y.S.3d 702 [2019] ; People v. Norton, 164 A.D.3d 1502, 1503, 82 N.Y.S.3d 665 [2018], lv denied 32 N.Y.3d 1114, 91 N.Y.S.3d 365, 115 N.E.3d 637 [2018] ). Insofar as defendant asserts that counsel did not diligently investigate his case, this concerns matters outside the record that is more properly the subject of a CPL article 440 motion (see People v. Blanchard, 188 A.D.3d 1414, 1416, 136 N.Y.S.3d 492 [2020] ; People v. Muller, 159 A.D.3d 1232, 1233, 73 N.Y.S.3d 279 [2018] ).
Clark, J.P., Aarons and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.