Opinion
2014-10-2
The PEOPLE of the State of New York, Respondent, v. Marcel N. SMITH, Appellant.
Aaron A. Louridas, Delmar, for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Aaron A. Louridas, Delmar, for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and CLARK, JJ.
GARRY, J.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 3, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
Defendant pleaded guilty to criminal possession of a weapon in the second degree in satisfaction of a pending indictment, and further waived his right to appeal from the conviction and sentence. County Court imposed a sentence within the range contemplated by the plea agreement, namely, a prison term of seven years to be followed by postrelease supervision of five years. Defendant now appeals, and we affirm.
County Court was not obliged to “engage in any particular litany or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver,” and it properly explained the waiver to defendant and ensured that he understood the waiver (People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] [internal quotation marks and citation omitted]; see People v. Colon, 101 A.D.3d 1161, 1161, 955 N.Y.S.2d 434 [2012], lv. denied21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1276 [2013] ). Defendant's further challenge to the voluntariness of his guilty plea survives that waiver, but is nevertheless unpreserved for our review due to his apparent failure to raise the issue in an appropriate postallocution motion ( see People v. Trombley, 115 A.D.3d 1114, 1114, 982 N.Y.S.2d 791 [2014], lv. denied23 N.Y.3d 1068, –––N.Y.S.2d ––––, ––– N.E.3d –––– [Aug. 8, 2014]; People v. Dozier, 115 A.D.3d 1001, 1001, 981 N.Y.S.2d 626 [2014] ). Defendant made no statements during the plea colloquy that would bring this case within the narrow exception to the preservation rule, and we perceive no reason “to take corrective action as a matter of discretion in the interest of justice” (People v. Young, 102 A.D.3d 1061, 1061, 958 N.Y.S.2d 804 [2013]; see People v. Borden, 91 A.D.3d 1124, 1126, 936 N.Y.S.2d 752 [2012], lv. denied19 N.Y.3d 862, 947 N.Y.S.2d 411, 970 N.E.2d 434 [2012] ). Defendant's ineffective assistance of counsel argument, to the extent that it survives his appeal waiver, is similarly unpreserved for our review ( see People v. Livziey, 117 A.D.3d 1341, 1342, 986 N.Y.S.2d 686 [2014]; People v. Osgood, 111 A.D.3d 1029, 1030, 974 N.Y.S.2d 662 [2013], lv. denied22 N.Y.3d 1089, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014] ).
Defendant next asserts that County Court improperly abdicated its sentencing discretion, an issue reaching “the ‘essential nature’ of the right to be sentenced as provided by law” that is properly before us (People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563 [1982], quoting People v. Craig, 295 N.Y. 116, 120, 65 N.E.2d 192 [1946]; see People v. Nolcox, 40 A.D.3d 1128, 1128, 834 N.Y.S.2d 883 [2007], lv. denied9 N.Y.3d 1037, 852 N.Y.S.2d 22, 881 N.E.2d 1209 [2008]; People v. Halston, 37 A.D.3d 1144, 1145, 829 N.Y.S.2d 380 [2007], lvs. denied8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664 [2007] ). His claim is without merit, however, as County Court expressly conditioned the “promise” to impose a sentence within the bargained-for range “upon its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources” (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974], cert. denied sub nom. Selikoff v. New York, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 [1975]; see People v. Hicks, 98 N.Y.2d 185, 188, 746 N.Y.S.2d 441, 774 N.E.2d 205 [2002] ).
Defendant's valid appeal waiver forecloses review of his contention that the sentence is harsh and excessive ( see People v. Dozier, 115 A.D.3d at 1002, 981 N.Y.S.2d 626).
ORDERED that the judgment is affirmed.
PETERS, P.J., STEIN, EGAN JR. and CLARK, JJ., concur.