Opinion
111629
06-16-2022
The PEOPLE of the State of New York, Respondent, v. Dennis C. WASHINGTON, Appellant.
Michelle E. Stone, Vestal, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Kathryn M. Hansen of counsel), for respondent.
Michelle E. Stone, Vestal, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Kathryn M. Hansen of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Reynolds Fitzgerald, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Clark, J. Appeals (1) from a judgment of the County Court of Chemung County (Rich Jr., J.), rendered March 1, 2019, (a) convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree, and (b) convicting defendant following a nonjury trial of the crime of assault in the third degree, and (2) from a judgment of said court, rendered June 28, 2019, which resentenced defendant.
Following a series of controlled buys and the execution of a search warrant for his residence, defendant was charged with criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. After engaging in certain unsuccessful motion practice, defendant pleaded guilty to criminal possession of a weapon in the second degree in satisfaction of the foregoing charges and agreed to waive his right to appeal. Defendant was ultimately sentenced to a prison term of four years to be followed by a period of postrelease supervision, in accord with the terms of his plea agreement. He appeals.
Defendant does not raise any issues on appeal pertaining to his conviction of assault in the third degree. Defendant also does not make any arguments relating to the June 2019 resentencing judgment, and we therefore deem his appeal from that judgment to be abandoned (see People v. Harris, 143 A.D.3d 1181, 1182–1183, 40 N.Y.S.3d 239 [2016], lv denied 28 N.Y.3d 1145, 52 N.Y.S.3d 297, 74 N.E.3d 682 [2017] ; People v. Barrett, 39 A.D.3d 1088, 1089, 834 N.Y.S.2d 574 [2007], lv denied 9 N.Y.3d 863, 840 N.Y.S.2d 892, 872 N.E.2d 1198 [2007] ).
Defendant argues that his waiver of the right to appeal is invalid. We disagree. The record reflects that defendant was aware that he was required to waive his right to appeal as a condition of his plea agreement and, knowing that, he wished to proceed with the plea. County Court, in turn, explained the separate and distinct nature of the right to appeal, accompanied by an explanation of the appellate process, and made clear that the waiver would encompass any issue with respect to the court's adverse suppression rulings, which defendant now challenges on appeal. Defendant indicated that he understood all of the foregoing, had no questions relative thereto and had been afforded sufficient time to confer with counsel. We accordingly find that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Although there is no indication in the record that County Court ascertained whether defendant had read and understood the written appeal waiver that he executed, rendering the written waiver invalid, the lack of a valid written waiver is of no moment in light of the sufficiency of the oral colloquy (see People v. Burke, 199 A.D.3d 1170, 1171, 154 N.Y.S.3d 505 [2021] ; People v. Brunson, 185 A.D.3d 1300, 1300, 128 N.Y.S.3d 338 [2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 345, 159 N.E.3d 1112 [2020] ; People v. Bonner, 182 A.D.3d 867, 867, 120 N.Y.S.3d 862 [2020] ).
The People's offer to defendant provided him with two options to choose from: if he agreed to waive his right to appeal, he would be conditionally promised a prison term of four years; if he wished to retain all of his appellate rights, the term would increase to five years.
Defendant also argues that the written waiver was overbroad (see generally People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). To the extent that this argument remains relevant given the invalidity of the written waiver, we note that County Court clearly advised defendant during the oral colloquy that not all appellate rights can be waived, and "we are satisfied that the counseled defendant understood the distinction that some appellate review survived" (People v. McCoy, 198 A.D.3d 1021, 1022, 152 N.Y.S.3d 635 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 724, 181 N.E.3d 1152 [2022] ; see People v. Crossley, 191 A.D.3d 1046, 1046–1047, 137 N.Y.S.3d 746 [2021], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 414, 174 N.E.3d 354 [2021] ; People v. Blanchard, 188 A.D.3d 1414, 1415, 136 N.Y.S.3d 492 [2020], lv denied 36 N.Y.3d 1055, 141 N.Y.S.3d 765, 165 N.E.3d 691 [2021] ).
In light of the validity of defendant's waiver, his remaining challenges are precluded, including his challenge to the factual sufficiency of the plea, which is erroneously couched in terms of voluntariness (see People v. Williams, 189 A.D.3d 1978, 1981, 138 N.Y.S.3d 690 [2020], lv denied 37 N.Y.3d 1165, 160 N.Y.S.3d 686, 181 N.E.3d 1114 [2022] ; People v. Huntley, 177 A.D.3d 1032, 1033, 114 N.Y.S.3d 484 [2019], lv denied 34 N.Y.3d 1131, 118 N.Y.S.3d 553, 141 N.E.3d 509 [2020] ; People v. Sablan, 177 A.D.3d 1024, 1027, 114 N.Y.S.3d 128 [2019], lv denied 34 N.Y.3d 1132, 118 N.Y.S.3d 523, 141 N.E.3d 479 [2020] ), and to County Court's suppression decisions (see People v. Jean–Pierre, 203 A.D.3d 1226, 1228, 160 N.Y.S.3d 670 [2022] ; People v. Nack, 200 A.D.3d 1197, 1199, 157 N.Y.S.3d 590 [2021], lv denied 38 N.Y.3d 1009, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2022] ; People v. Andino, 185 A.D.3d 1218, 1219, 127 N.Y.S.3d 629 [2020], lvs denied 35 N.Y.3d 1110, 1116, 133 N.Y.S.3d 503, 158 N.E.3d 520 [2020]).
Lastly, defendant's passing claim of ineffective assistance of counsel, to the extent that it impacts the voluntariness of his plea, is unpreserved in the absence of an appropriate postallocution motion, and the narrow exception to the preservation requirement is inapplicable here (see People v. Agueda, 202 A.D.3d 1153, 1154, 160 N.Y.S.3d 489 [2022] ; People v. Stratton, 201 A.D.3d 1201, 1203–1204, 159 N.Y.S.3d 763 [2022] ; People v. Ballard, 200 A.D.3d 1476, 1478, 159 N.Y.S.3d 242 [2021], lvs denied 38 N.Y.3d 925, 927, 164 N.Y.S.3d 6, 184 N.E.3d 827 [2022]). In any event, his claim that counsel failed to investigate a potential defense involves a matter outside the record, and it is therefore the proper subject of a CPL article 440 motion (see People v. Sanders, 203 A.D.3d 1403, 1404, 161 N.Y.S.3d 856 [2022] ; People v. Rhodes, 203 A.D.3d 1316, 1318, 163 N.Y.S.3d 329 [2022] ; People v. Weidenheimer, 181 A.D.3d 1096, 1097, 122 N.Y.S.3d 149 [2020] ).
Egan Jr., J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concur.
ORDERED that the judgments are affirmed.