Opinion
109359
01-30-2020
The PEOPLE of the State of New York, Respondent, v. Troy SCHMIDT, Appellant.
Matthew A. Toporowski, Albany, for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Matthew A. Toporowski, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Colangelo, JJ.
MEMORANDUM AND ORDER
Colangelo, J.
In May 2016, defendant was arrested following a domestic disturbance during which he assaulted and attempted to choke his then-fiance´e. He was charged in a felony complaint with numerous crimes and was placed in the Ulster County jail, where he remained for an extended period of time. While incarcerated, defendant made a pro se motion pursuant to CPL 30.30 to dismiss the criminal action on speedy trial grounds. However, he withdrew that motion during the plea proceedings that followed. He then waived indictment and pleaded guilty to a superior court information charging him with aggravated family offense. He also waived his right to appeal. In accordance with the terms of the plea agreement, defendant was sentenced as a second felony offender to 2 to 4 years in prison. He appeals.
Initially, defendant contends that his guilty plea was not knowing, voluntary and intelligent. Although not precluded by his appeal waiver, this claim has not been preserved for our review as the record does not disclose that defendant made an appropriate postallocution motion despite having an opportunity to do so (see People v. Gorman , 165 A.D.3d 1349, 1349, 85 N.Y.S.3d 614 [2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ; People v. Buck , 136 A.D.3d 1117, 1118, 25 N.Y.S.3d 402 [2016] ). Moreover, the narrow exception to the preservation rule is inapplicable, as defendant did not make any statements during the plea colloquy that were inconsistent with his guilt, negated an essential element of the crime or cast doubt upon the voluntariness of his plea (see People v. White , 172 A.D.3d 1822, 1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ; People v. Buck , 136 A.D.3d at 1118, 25 N.Y.S.3d 402 ).
Defendant's further claim of ineffective assistance of counsel – to the extent that it impacted the voluntariness of his guilty plea – also survives his appeal waiver, but is similarly unpreserved (see People v. Gorman , 165 A.D.3d at 1350, 85 N.Y.S.3d 614 ; People v. Taylor , 144 A.D.3d 1317, 1318, 41 N.Y.S.3d 587 [2016], lv denied 28 N.Y.3d 1151, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ). Insofar as defendant maintains that his counsel was ineffective in failing to pursue a speedy trial claim, this concerns matters outside the record and is more properly the subject of a CPL article 440 motion (see People v. Gorman , 165 A.D.3d at 1350, 85 N.Y.S.3d 614 ; People v. Rutigliano , 159 A.D.3d 1280, 1281, 73 N.Y.S.3d 674 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ). We have considered defendant's remaining contentions, to the extent that they are properly before us, and find them to be unavailing.
Garry, P.J., Egan Jr., Clark and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.