Opinion
109222
11-15-2018
The PEOPLE of the State of New York, Respondent, v. Ernest MULLER, Also Known as Big E, Appellant.
Theresa M. Suozzi, Saratoga Springs, for appellant. Barbara D. Underwood, Attorney General, New York City (Lisa E. Fleischmann of counsel), for respondent.
Theresa M. Suozzi, Saratoga Springs, for appellant.
Barbara D. Underwood, Attorney General, New York City (Lisa E. Fleischmann of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
In satisfaction of a 75–count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived the right to appeal, with the understanding that his sentence would range from time served to five years in prison, to be followed by two years of postrelease supervision. Despite defendant being arrested on a new charge of criminal sale of a controlled substance in the third degree while awaiting sentencing and admittedly violating a condition of his plea agreement that he cooperate with the People in the prosecution of his coconspirators, County Court adhered to the terms of the plea agreement and sentenced him to five years in prison, to be followed by two years of postrelease supervision. Defendant now appeals.
We affirm. To the extent that defendant challenges the validity of his waiver of the right to appeal, the record reflects that his combined oral and written waiver of the right to appeal was knowing, intelligent and voluntary (see People v. Sanders , 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2009] ). County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea. Defendant then signed a written waiver in open court after reading it and discussing it with counsel and affirmed to the court his understanding thereof. Under these circumstances, we find that defendant validly waived the right to appeal (see People v. Dutcher , 156 A.D.3d 1122, 1122, 67 N.Y.S.3d 354 [2017] ; People v. Plass , 150 A.D.3d 1558, 1559, 56 N.Y.S.3d 581 [2017], lv denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ). Defendant's claim that the sentence is harsh and excessive is thus precluded by the valid appeal waiver (see People v. Rogers , 162 A.D.3d 1410, 1410, 75 N.Y.S.3d 923 [2018] ; People v. Stein , 161 A.D.3d 1389, 1390, 77 N.Y.S.3d 579 [2018] ).
Defendant's challenge to the voluntariness of his plea survives his appeal waiver but is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Wood , 161 A.D.3d 1447, 1449, 77 N.Y.S.3d 763 [2018] ; People v. Edwards , 160 A.D.3d 1280, 1281, 75 N.Y.S.3d 663 [2018], lv denied 31 N.Y.3d 1147, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ). Moreover, defendant did not make any statements during the plea allocution that cast doubt on his guilt or called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation rule (see People v. Brewster , 161 A.D.3d 1309, 1310, 77 N.Y.S.3d 205 [2018] ; People v. Edwards , 160 A.D.3d at 1281, 75 N.Y.S.3d 663 ). His ineffective assistance of counsel claim also survives his appeal waiver to the extent that it impacts the voluntariness of his plea but is similarly unpreserved for review in the absence of a postallocution motion (see People v. Robinson , 155 A.D.3d 1252, 1253, 64 N.Y.S.3d 740 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ; People v. Williams , 150 A.D.3d 1549, 1551, 56 N.Y.S.3d 357 [2017] ). We note that the majority of the issues raised regarding ineffective assistance of counsel, including that counsel failed to explore potential defenses, involve matters outside of the record and are more properly the subject of a CPL article 440 motion (see People v. Cantey , 161 A.D.3d 1449, 1450–1451, 77 N.Y.S.3d 761 [2018], lv denied 32 N.Y.3d 935, 940, 84 N.Y.S.3d 862, 867, 109 N.E.3d 1162, 1167 [2018]; People v. Smith , 155 A.D.3d 1244, 1246, 65 N.Y.S.3d 580 [2017] ).
McCarthy, J.P., Devine, Clark and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.