Opinion
04-25-2024
The PEOPLE of the State of New York, Respondent, v. Akeem ULMER, Appellant.
Erin C. Morigerato, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Erin C. Morigerato, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Clark, J.P., Aarons, Reynolds Fitzgerald, McShan and Mackey, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J.
Appeal from a judgment of the Supreme Court (Kathleen B. Hogan, J.), rendered November 7, 2019 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Defendant, who was charged by felony complaints with several drug-related offenses, waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with criminal possession of a controlled substance in the third degree. In satisfaction of the superior court information and other uncharged crimes, defendant pleaded guilty to the subject crime with the understanding that he would be sentenced to a prison term of 13 years, to be followed by a period of postrelease supervision to be determined by Supreme Court. As part of the plea agreement, defendant was required to waive the right to appeal. Supreme Court thereafter sentenced defendant, as a second felony offender with a prior violent felony conviction, to 13 years in prison, to be followed by three years of postrelease supervision, and ordered that defendant pay $1,563 in restitution. Defendant appeals.
[1] We affirm. Initially, we agree with defendant that his appeal waiver is not valid. The written appeal waiver executed by defendant is overly broad in that it purported to create an absolute bar to a direct appeal by indicating that the waiver "mark[s] the end of [his] case" and precludes him from pursuing collateral relief in state and federal courts (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020]; People v. Ward, 204 A.D.3d 1172, 1172, 164 N.Y.S.3d 535 [3d Dept. 2022], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 855, 193 N.E.3d 520 [2022]). Further, these defects were not cured by Supreme Court’s oral colloquy (see People v. Dunbar, 218 A.D.3d 931, 932, 193 N.Y.S.3d 397 [3d Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023]; People v. Tiggs, 216 A.D.3d 1357, 1357, 188 N.Y.S.3d 276 [3d Dept. 2023], lv denied 40 N.Y.3d 952, 195 N.Y.S.3d 674, 217 N.E.3d 694, 695 [2023]).
[2, 3] Defendant’s challenge to the voluntariness of his plea is not preserved for our review as the record does not reveal that he made an appropriate postallocution motion and the narrow exception to the preservation requirement was not triggered (see People v. Lamondie, 220 A.D.3d 991, 992, 198 N.Y.S.3d 247 [3d Dept. 2023]; People v. Miller, 215 A.D.3d 1141, 1142, 186 N.Y.S.3d 445 [3d Dept. 2023], lv denied 40 N.Y.3d 930, 192 N.Y.S.3d 497, 213 N.E.3d 639 [2023]). Defendant’s ineffective assistance of counsel claims, insofar as they impact the voluntariness of the plea, are similarly unpreserved for review based upon the lack of an appropriate postallocution motion (see People v. Faublas, 216 A.D.3d 1358, 1359, 189 N.Y.S.3d 828 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 756, 215 N.E.3d 1197 [2023]; People v. West, 210 A.D.3d 1194, 1195, 178 N.Y.S.3d 266 [3d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 290, 204 N.E.3d 1072 [2023]). To the extent that defendant’s ineffective assistance of counsel claims involve matters outside of the record, such claims are more properly the subject of a CPL article 440 motion (see People v. Hilliard, 214 A.D.3d 1259, 1261, 184 N.Y.S.3d 638 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 501, 213 N.E.3d 643 [2023]; People v. Dye, 210 A.D.3d 1192, 1194, 178 N.Y.S.3d 239 [3d Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 789, 204 N.E.3d 425 [2023]). As for restitution, defendant initially objected to the amount imposed during the plea allocution. The allocution was adjourned in order for the People to confirm the amount owed and, upon resumption of the colloquy, defendant ultimately agreed to the amount proffered by the People. Accordingly, no restitution hearing was required (see Penal Law § 60.27[2]; People v. Faranda, 86 A.D.3d 862, 863, 927 N.Y.S.2d 727 [3d Dept. 2011], lv denied 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162 [2011]; People v. Drew, 16 A.D.3d 840, 841, 792 N.Y.S.2d 639 [3d Dept. 2005]) and "counsel’s failure to request a hearing did not deprive defendant of meaningful representation" (People v. Faranda, 86 A.D.3d at 863, 927 N.Y.S.2d 727).
[4] In light of the invalid appeal waiver, defendant’s challenge to the perceived severity of his sentence is not precluded (see People v. Hopkins, 221 A.D.3d 1850, 1351, 198 N.Y.S.3d 617 [3d Dept. 2023]; People v. Potter, 219 A.D.3d 1648, 1649, 195 N.Y.S.3d 564 [3d Dept. 2023]). That said, upon reviewing the record and considering all the relevant circumstances, including defendant’s criminal history, we do not find the sentence imposed to be unduly harsh or severe (see CPL 470.15[6][b]) and decline defendant’s invitation to modify it in the interest of justice.
Clark, J.P., Aarons, McShan and Mackey, JJ., concur.
ORDERED that the judgment is affirmed.