Opinion
No. 112748
11-16-2023
The People of the State of New York, Respondent, v. Mansa Wilkerson, Appellant.
Carolyn B. George, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Carolyn B. George, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Clark, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.
Reynolds Fitzgerald, J.
Appeal from a judgment of the County Court of Schenectady County (Mark J. Caruso, J.), rendered January 25, 2019, convicting defendant upon his plea of guilty of the crime of criminally negligent homicide.
Defendant was charged in a five-count indictment with various charges, including manslaughter in the second degree. Following a suppression hearing, but prior to a decision thereon, defendant pleaded guilty to criminally negligent homicide in satisfaction of the indictment and purportedly waived the right to appeal. County Court thereafter sentenced defendant to the agreed-upon prison term of 1 to 3 years. Defendant appeals.
Initially, we find that defendant did not validly waive the right to appeal "as the written waiver is overbroad and inaccurate, and County Court did not overcome the overbroad language by ensuring that defendant understood that some appellate and collateral review survived an appeal waiver" (People v. Faulkner, 217 A.D.3d 1143, 1143 [3d Dept 2023] [internal quotation marks, ellipsis, brackets and citations omitted]; see People v. Faublas, 216 A.D.3d 1358, 1358 [3d Dept 2023], lv denied 40 N.Y.3d 934 [2023]). Defendant's challenges to the voluntariness of his plea and his claim of ineffective assistance of counsel, to the extent it implicates the voluntariness of his plea, are unpreserved for our review as the record does not indicate that he made an appropriate postallocution motion (see People v. Vilbrin, 183 A.D.3d 1012, 1013 [3d Dept 2020], lv denied 35 N.Y.3d 1049 [2020]; People v. White, 172 A.D.3d 1822, 1823-1824 [3d Dept 2019], lv denied 33 N.Y.3d 1110 [2019]), and the narrow exception to the preservation rule was not triggered (see People v. Lomack, 217 A.D.3d 1281, 1282 [3d Dept 2023], lv denied 40 N.Y.3d 951 [2023]; People v. Loya, 215 A.D.3d 1181, 1183 [3d Dept 2023], lv denied 40 N.Y.3d 929 [2023]). Defendant's remaining claim of ineffective assistance of counsel that is premised on counsel's representation at the suppression hearing is foreclosed by his guilty plea (see People v. Darby, 206 A.D.3d 1165, 1169 [3d Dept 2022], lv denied 38 N.Y.3d 1149 [2022]; People v. Burks, 187 A.D.3d 1405, 1408 [3d Dept 2020], lv denied 36 N.Y.3d 1095 [2021]).
Clark, J.P., Aarons, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed.