Opinion
107756
05-31-2018
The PEOPLE of the State of New York, Respondent, v. Dumel TUCKER, Appellant.
Craig S. Leeds, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Craig S. Leeds, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered January 30, 2015, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
Defendant was charged in an indictment with multiple crimes arising from an incident in which he entered a restaurant, displayed a firearm and forcibly stole property from employees who were bound with duct tape. He pleaded guilty to robbery in the first degree in satisfaction of the indictment and waived his right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, he was sentenced to eight years in prison and five years of postrelease supervision, to run consecutively to a sentence that he was serving on a prior robbery conviction. Defendant appeals.
Initially, we find defendant's appeal waiver to be valid. Notably, the record discloses that County Court explained the separate and distinct nature of the waiver and ascertained that defendant understood its consequences. Moreover, during the plea proceedings, defendant read and signed the written appeal waiver after conferring with counsel and reconfirmed his understanding to County Court. Thus, the record establishes that the waiver was knowing, voluntary and intelligent, thereby precluding defendant's challenge to the severity of the sentence (see 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] ; People v. Clapper, 133 A.D.3d 1037, 1038, 20 N.Y.S.3d 452 [2015], lv denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ).
Defendant further contends that his guilty plea was not knowing, voluntary and intelligent because it was factually insufficient and was accepted by County Court without further inquiry, despite defendant's alleged protestations of innocence. Although this claim survives defendant's appeal waiver, it has not been preserved for our review due to defendant's conceded failure to make an appropriate postallocution motion (see People v. Evans, 156 A.D.3d 1246, 1247, 68 N.Y.S.3d 564 [2017] ; People v. Bethea, 133 A.D.3d 1033, 1034, 19 N.Y.S.3d 191 [2015], lv denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ). Likewise, defendant's assertion that he was deprived of the effective assistance of counsel, to the extent that it impacts the voluntariness of his plea, is unpreserved for the same reason (see People v. Evans, 156 A.D.3d at 1247, 68 N.Y.S.3d 564 ; People v. Bethea, 133 A.D.3d at 1034, 19 N.Y.S.3d 191 ). We find that the narrow exception to the preservation rule is inapplicable here as, contrary to defendant's claim, the record does not disclose that he asserted his innocence or otherwise made statements that cast doubt upon his guilt (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Evans, 156 A.D.3d at 1247, 68 N.Y.S.3d 564 ). Furthermore, insofar as defendant argues in his pro se supplemental brief that his counsel was ineffective by advising him to plead guilty without accurately assessing the evidence or explaining the proof needed to secure a conviction, this claim concerns matters outside the record and is more properly considered in the context of a CPL article 440 motion (see People v. Clapper, 133 A.D.3d at 1038, 20 N.Y.S.3d 452 ; People v. Pickett, 128 A.D.3d 1275, 1276, 9 N.Y.S.3d 737 [2015], lvs denied 26 N.Y.3d 930, 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ).
ORDERED that the judgment is affirmed.
McCarthy, J.P., Aarons, Rumsey and Pritzker, JJ., concur.