Opinion
110573
09-02-2021
The PEOPLE of the State of New York, Respondent, v. Oshapha MURRAY, Appellant.
Law Offices of Danielle Neroni, Albany (Angela Kelley of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Law Offices of Danielle Neroni, Albany (Angela Kelley of counsel), for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Colangelo, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 13, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
Defendant was charged in a superseding indictment with attempted murder in the second degree, attempted assault in the first degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. After twice rejecting other plea offers, and prior to the commencement of certain scheduled suppression hearings, defendant waived his right to appeal and pleaded guilty – in full satisfaction of the superseding indictment – to one count of criminal possession of a weapon in the second degree with the understanding that he would be sentenced to a prison term of 10 years followed by five years of postrelease supervision. County Court thereafter sentenced defendant as a second felony offender to the contemplated term of imprisonment, and this appeal ensued.
We affirm. Although defendant's challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal, this argument is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Crossley, 191 A.D.3d 1046, 1047, 137 N.Y.S.3d 746 [2021] ; People v. Danzy, 182 A.D.3d 920, 921, 123 N.Y.S.3d 261 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 857, 151 N.E.3d 539 [2020] ). The narrow exception to the preservation requirement does not apply, as defendant did not make any statements during the plea colloquy that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Aponte, 190 A.D.3d 1031, 1032, 138 N.Y.S.3d 724 [2021], lvs denied 37 N.Y.3d 953, 959, 960, 147 N.Y.S.3d 549, 170 N.E.3d 423 [2021] ; People v. Weidenheimer, 181 A.D.3d 1096, 1097, 122 N.Y.S.3d 149 [2020] ).
Defendant's ineffective assistance of counsel claim – insofar as it is premised upon counsel's failure to proceed with the scheduled suppression hearings – does not impact upon the voluntariness of defendant's plea and, therefore, is precluded by his unchallenged appeal waiver (see People v. Buckler, 80 A.D.3d 889, 890, 914 N.Y.S.2d 773 [2011], lv denied 17 N.Y.3d 804, 929 N.Y.S.2d 564, 953 N.E.2d 802 [2011] ; People v. Whitehead, 73 A.D.3d 1340, 1341, 899 N.Y.S.2d 922 [2010], lv denied 15 N.Y.3d 779, 907 N.Y.S.2d 468, 933 N.E.2d 1061 [2010] ; People v. Leigh, 71 A.D.3d 1288, 1288, 897 N.Y.S.2d 744 [2010], lv denied 15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010] ). To the extent that such claim may be said to have "a bearing upon the voluntariness of defendant's plea," it survives the appeal waiver but nonetheless is unpreserved for our review ( People v. White, 122 A.D.3d 1005, 1006, 995 N.Y.S.2d 653 [2014] ; see People v. Chaney, 160 A.D.3d 1281, 1285, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). In any event, "by pleading guilty before [the] suppression hearing[s were] held, ‘defendant precluded the making of a record and, in consequence, foreclosed the possibility of appellate review’ of all claims related to the pending suppression motion[s]" ( People v. Ball, 152 A.D.3d 973, 974, 55 N.Y.S.3d 915 [2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017], quoting People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ; see People v. Cochran, 112 A.D.3d 997, 998, 975 N.Y.S.2d 921 [2013], lv denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ; People v. Whitted, 12 A.D.3d 840, 841, 784 N.Y.S.2d 690 [2004], lv denied 4 N.Y.3d 769, 792 N.Y.S.2d 12, 825 N.E.2d 144 [2005] ). Accordingly, the merits of defendant's various suppression arguments are not properly before us.
Garry, P.J., Egan Jr., Clark and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.