Opinion
12-17-2015
The PEOPLE of the State of New York, Respondent, v. Joshua R. HUGHES, Appellant.
John A. Cirando, Syracuse, for appellant. Mary E. Rain, District Attorney, Canton (A. Michael Gebo of counsel), for respondent.
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (A. Michael Gebo of counsel), for respondent.
Before: McCARTHY, J.P., EGAN Jr., LYNCH and DEVINE, JJ.
DEVINE, J.Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered March 22, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
Following jury selection, defendant entered an Alford plea to the sole count in an indictment charging burglary in the second degree and waived his right to appeal. Consistent with the plea agreement, County Court sentenced defendant, as a second violent felony offender, to a prison term of seven years with five years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's challenge to the waiver of appeal is belied by the record, which reflects that County Court made clear its "separate and distinct" nature, explained the right being waived and confirmed that defendant understood it and had no questions, prior to signing the written appeal waiver in court (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Jackson, 129 A.D.3d 1342, 1342, 10 N.Y.S.3d 368 [2015] ). Contrary to his claims, County Court sufficiently explained the appellate rights that survive the waiver, and we find that defendant's waiver of appellate rights was knowing, voluntary and intelligent (see id.; see also People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ).
While defendant's challenge to his Alford plea survives his appeal waiver to the extent that it implicates the voluntariness of his plea, it is unpreserved as he failed to make an appropriate postallocution motion, and the narrow exception to the preservation rule is inapplicable (see People v. Heidgen, 22 N.Y.3d 981, 981–982, 979 N.Y.S.2d 553, 2 N.E.3d 921 [2013] ; People v. Fallen, 106 A.D.3d 1118, 1119, 963 N.Y.S.2d 777 [2013], lv. denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ; People v. Ture, 94 A.D.3d 1163, 1164, 941 N.Y.S.2d 530 [2012], lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ).
Defendant alleges that he received the ineffective assistance of counsel due to counsel's failure to conduct appropriate discovery. To the extent that this argument survives his appeal waiver by implicating the voluntariness of his plea, however, it involves matters outside the record that must be raised in a CPL article 440 motion (see People v. Brown, 125 A.D.3d 1049, 1050, 2 N.Y.S.3d 699 [2015] ; People v. Sylvan, 107 A.D.3d 1044, 1045–1046, 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] ). Defendant's remaining claims of ineffective assistance survive his appeal waiver to the extent that they implicate the voluntariness of his guilty plea, but are unpreserved given the absence of an appropriate postallocution motion (see People v. Jackson, 128 A.D.3d 1279, 1280, 9 N.Y.S.3d 739 [2015], lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ). Regardless, his contentions are belied by the plea colloquy, in which defendant confirmed that he was satisfied with counsel's services and had adequate time to discuss the plea with him. Defendant's remaining claims similarly lack merit.
While defendant argued at sentencing that his trial counsel had been ineffective in a prior action, that did not preserve the present claim of ineffective assistance in this action.
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ORDERED that the judgment is affirmed.
McCARTHY, J.P., EGAN JR. and LYNCH, JJ., concur.