Opinion
109481
01-30-2020
The PEOPLE of the State of New York, Respondent, v. Khalik MARTIN, Appellant.
Khalik Martin, Malone, appellant pro se. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Khalik Martin, Malone, appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Devine, Aarons and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Devine, J.
Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered April 12, 2017 in Schenectady County, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.
In satisfaction of a multicount indictment, defendant pleaded guilty to attempted assault in the first degree and waived his right to appeal. Supreme Court sentenced defendant in accordance with the terms of the plea agreement to a prison term of 7½ years followed by 2½ years of postrelease supervision. Defendant appeals.
Initially, we find that defendant's waiver of the right to appeal is valid. The record clearly reflects that defendant was advised that the waiver of appeal was a condition of the plea agreement, and defendant agreed to such condition. The record establishes that Supreme Court explained to defendant that ordinarily he would have the right to appeal his conviction and sentence, but, as a condition of the plea agreement, he was required to waive that right. Defendant then executed a written appeal waiver in open court, which he reviewed with counsel and acknowledged that he had read and understood. Although the court did not specifically use the language "separate and distinct" to explain defendant's appellate rights, no particular litany or catechism is required during the allocution, and we find that the record reflects that the court sufficiently distinguished defendant's right to appeal from the trial-related rights forfeited by the guilty plea (see People v. Danielson, 170 A.D.3d 1430, 1431 [2019], lv denied 33 N.Y.3d 1030, 126 N.E.3d 165 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 486, ––– L.E.2d –––– [2019] ; People v. Douglas, 168 A.D.3d 1285, 1285–1286, 91 N.Y.S.3d 814 [2019] ). The court further ensured during the colloquy that, notwithstanding the overbroad language of the written waiver, "the counseled defendant understood the distinction that some appellate review survived" ( People v. Thomas , ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, *4 [2019] ). Upon review, we are satisfied that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Womack, 172 A.D.3d 1819, 1820, 101 N.Y.S.3d 771 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 662, 130 N.E.3d 1272 [2019] ; People v. Walker, 166 A.D.3d 1393, 1393–1394, 86 N.Y.S.3d 920 [2018] ). Accordingly, the valid appeal waiver precludes defendant's challenges to the factual sufficiency of the plea allocution (see People v. Womack, 172 A.D.3d at 1821, 101 N.Y.S.3d 771 ; People v. McDonald, 165 A.D.3d 1327, 1328, 83 N.Y.S.3d 751 [2018], lv denied 32 N.Y.3d 1175, 97 N.Y.S.3d 591, 121 N.E.3d 218 [2019] ) and the harshness of the sentence imposed (see People v. Ward, 171 A.D.3d 1312, 1314, 95 N.Y.S.3d 668 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 49, 129 N.E.3d 369 [2019] ).
Although not precluded by the appeal waiver, defendant's challenge to the voluntariness of the plea is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Pittman, 157 A.D.3d 1130, 1131, 69 N.Y.S.3d 750 [2018], lv denied 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ; People v. Lloyd, 142 A.D.3d 1250, 1251, 37 N.Y.S.3d 917 [2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ). Further, the narrow exception to the preservation rule is inapplicable. Although defendant initially indicated that he did not intend to cause serious physical injury to the victim, thereby negating an essential element of the crime, Supreme Court explained the definition of serious physical injury and satisfied its duty of further inquiry, after which defendant admitted that he intended to cause serious physical injury to the victim (see People v. Danielson, 170 A.D.3d at 1432, 96 N.Y.S.3d 754 ; People v. Howe, 164 A.D.3d 951, 952, 81 N.Y.S.3d 675 [2018], lv denied 32 N.Y.3d 1112, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018] ; People v. Reap, 163 A.D.3d 1287, 1288, 81 N.Y.S.3d 654 [2018], lv denied 32 N.Y.3d 1128, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018] ). Defendant's challenge to the effective assistance of counsel, to the extent that it impacts the voluntariness of the plea, is also unpreserved (see People v. Major, 176 A.D.3d 1257, 1258, 107 N.Y.S.3d 725 [2019], lv denied 34 N.Y.3d 1017, 114 N.Y.S.3d 765, 138 N.E.3d 464 [2019] ; People v. Snare, 174 A.D.3d 1222, 1223, 102 N.Y.S.3d 902 [2019], lv denied 34 N.Y.3d 984, 113 N.Y.S.3d 640, 137 N.E.3d 10 [2019] ). Further, defendant's challenge to the sufficiency of the evidence before the grand jury is not jurisdictional in nature and is foreclosed by his plea of guilty (see People v. Guerrero, 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ; People v. Hunter, 175 A.D.3d 1601, 1602, 108 N.Y.S.3d 527 [2019], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Dec. 10, 2019]; People v. McDonald, 165 A.D.3d at 1328, 83 N.Y.S.3d 751 ).
Egan Jr., J.P., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.