Opinion
06-30-2016
The PEOPLE of the State of New York, Respondent, v. German A. LOBATON, Appellant.
Michael C. Ross, Bloomingburg, for appellant, and appellant pro se. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Michael C. Ross, Bloomingburg, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: LAHTINEN, J.P., ROSE, LYNCH, CLARK and AARONS, JJ.
CLARK, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 3, 2014, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
Defendant pleaded guilty to burglary in the second degree in full satisfaction of a 12–count indictment and waived the right to appeal his conviction and sentence. County Court thereafter imposed the agreed-upon sentence of 13 years in prison to be followed by five years of postrelease supervision. Defendant now appeals. We affirm. Defendant's contention that his plea was not knowing, intelligent and voluntary because County Court coerced him into pleading guilty is unpreserved for our review as the record does not indicate that he made an appropriate postallocution motion (see People v. Conley, 135 A.D.3d 1238, 1238–1239, 23 N.Y.S.3d 724 [2016] ; People v. Colon, 106 A.D.3d 1367, 1368, 966 N.Y.S.2d 269 [2013] ). Moreover, the narrow exception to the preservation rule is not applicable here, as defendant made no statements during the plea allocution that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Walker, 135 A.D.3d 1244, 1245, 23 N.Y.S.3d 485 [2016] ; People v. DeCenzo, 132 A.D.3d 1160, 1161, 18 N.Y.S.3d 760 [2015], lv. denied 27 N.Y.3d 996, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). In any event, the fact that County Court informed defendant of his maximum sentence exposure does not constitute coercive conduct (see People v. Ross, 117 A.D.3d 1342, 1343, 986 N.Y.S.2d 687 [2014] ; People v. Seuffert, 104 A.D.3d 1021, 1022, 960 N.Y.S.2d 738 [2013], lv. denied 21 N.Y.3d 1009, 971 N.Y.S.2d 261, 993 N.E.2d 1284 [2013] ), and defendant affirmed during the allocution that he had not been coerced or pressured into accepting a plea and was entering his plea voluntarily.
Given his valid and uncontested waiver of his right to appeal, we are precluded from reviewing defendant's claim that his sentence is harsh and excessive (see People v. Conley, 135 A.D.3d at 1238, 23 N.Y.S.3d 724 ; People v. Griffin, 117 A.D.3d 1339, 1339, 986 N.Y.S.2d 683 [2014] ). Defendant's ineffective assistance of counsel claim, raised in his pro se submission, is barred by his guilty plea and valid waiver of appeal (see People v. Islam, 134 A.D.3d 1348, 1349, 21 N.Y.S.3d 648 [2015]; People v. Viele, 130 A.D.3d 1097, 1097, 10 N.Y.S.3d 912 [2015] ). To the extent that his ineffective assistance of counsel claim impacts the voluntariness of his plea, thereby surviving his appeal waiver, such claim is unpreserved in the absence of an appropriate postallocution motion (see People v. Bethea, 133 A.D.3d 1033, 1034, 19 N.Y.S.3d 191 [2015], lv. denied 27 N.Y.3d 992, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016]; People v. Guyette, 121 A.D.3d 1430, 1431–1432, 995 N.Y.S.2d 395 [2014], lv. denied 27 N.Y.3d 998, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). Defendant's remaining contentions, to the extent not specifically addressed herein, have been examined and found to be lacking in merit.
ORDERED that the judgment is affirmed.
LAHTINEN, J.P., ROSE, LYNCH and AARONS, JJ., concur.