Opinion
111812
03-17-2022
The PEOPLE of the State of New York, Respondent, v. Duane WILLIAMS, 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: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND ORDER
Clark, J.
Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered June 24, 2019, convicting defendant upon his plea of guilty of the crime of attempted robbery in the second degree.
In February 2018, defendant allegedly entered a convenience store with a knife and robbed the store. Defendant was apprehended and thereafter waived indictment and pleaded guilty to a superior court information charging him with attempted robbery in the second degree. As part of the plea agreement, defendant was required to waive his right to appeal, which he purportedly did both orally and in writing. Consistent with the terms of the plea agreement, County Court sentenced defendant to a prison term of 2½ years followed by three years of postrelease supervision. Defendant appeals.
Initially, we find defendant's appeal waiver to be invalid, as the written waiver is overbroad and inaccurate, and "County Court did not overcome the overbroad language of the written waiver by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v. Lunan, 196 A.D.3d 969, 970, 148 N.Y.S.3d 408 [2021] ; see People v. Winters, 196 A.D.3d 847, 848–849, 151 N.Y.S.3d 263 [2021], lvs denied 37 N.Y.3d 1025, 1030, 153 N.Y.S.3d 413, 175 N.E.3d 439 [2021] ; People v. Avera, 192 A.D.3d 1382, 1382, 145 N.Y.S.3d 199 [2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 501, 170 N.E.3d 375 [2021] ; People v. Anderson, 184 A.D.3d 1020, 1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 364, 152 N.E.3d 1165, 1166 [2020]). Given the invalidity of the appeal waiver, we turn to the balance of defendant's claims.
We encourage County Court to review the Model Colloquy for the waiver of the right to appeal (see New York State Unified Court System, Criminal Jury Instructions & Model Colloquies, Waiver of Right to Appeal [https://www.nycourts.gov/judges/cji/8–Colloquies/1MCTOC.shtml]; People v. Slade, 180 A.D.3d 1073, 1074, 118 N.Y.S.3d 199 [2020] ; People v. Batista, 167 A.D.3d 69, 83, 86 N.Y.S.3d 492 [2018, Scheinkman, P.J., concurring] ; see People v. Bisono, 36 N.Y.3d 1013, 1026, 164 N.E.3d 239 [2020, Garcia, J., dissenting in part and concurring in part] ).
Defendant contends that his guilty plea was not knowing, voluntarily and intelligent. This claim, however, is unpreserved for our review as the record does not reveal that defendant made an appropriate postallocution motion to withdraw his guilty plea despite having an opportunity to do so prior to sentencing (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Mercer, 169 A.D.3d 1112, 1113–1114, 93 N.Y.S.3d 462 [2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 221, 124 N.E.3d 710 [2019] ; People v. Jackson, 159 A.D.3d 1276, 1276, 73 N.Y.S.3d 676 [2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ). Even assuming that the exception to the preservation requirement was triggered by certain statements made by defendant during the course of the presentence investigation, the record reveals that, at the sentencing proceeding, County Court fully satisfied its duty to inquire further, clarifying that defendant was aware of the contents of the presentence investigation report, that he had a chance to discuss it with counsel, that he was not attempting to raise any sort of defense of duress or coercion, that he was automatically forfeiting any such defense or defenses by pleading guilty and that he wished to proceed with the guilty plea (see People v. Thompson, 110 A.D.3d 1114, 1115, 972 N.Y.S.2d 356 [2013], lv denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] ; People v. Mead, 64 A.D.3d 814, 815, 882 N.Y.S.2d 738 [2009], lv denied 14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013 [2010] ). "Having failed to express, in any way, dissatisfaction with the court's remedial action, defendant has waived any further challenge to the allocution, and thus no issue is preserved for our review" ( People v. Lopez, 71 N.Y.2d 662, 668, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] [citation omitted]; accord People v. Greene, 195 A.D.3d 1317, 1318, 146 N.Y.S.3d 539 [2021] ; People v. Karolys, 85 A.D.3d 1213, 1213, 923 N.Y.S.2d 921 [2011], lv denied 17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98 [2011] ; cf. People v. Jackson, 159 A.D.3d 1276, 1276, 73 N.Y.S.3d 676 [2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ).
Defendant's contention that he received ineffective assistance of counsel, to the extent that it impacts upon the voluntariness of his plea, is similarly unpreserved (see People v. Nack, 200 A.D.3d 1197, 1198, 157 N.Y.S.3d 590 [2021] ; People v. Johnson, 194 A.D.3d 1267, 1269, 147 N.Y.S.3d 258 [2021] ). "[T]he balance of defendant's ineffective assistance of counsel claim, including that counsel failed to investigate the facts of his case, research the applicable law or advise him of potential defenses, involve matters outside the record that are more properly the subject of a CPL article 440 motion" ( People v. McCoy, 198 A.D.3d 1021, 1023, 152 N.Y.S.3d 635 [2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 724, 181 N.E.3d 1152 [2022] ; see People v. Chrise, 197 A.D.3d 1357, 1359, 150 N.Y.S.3d 629 [2021], lv denied 37 N.Y.3d 1059, 154 N.Y.S.3d 630, 176 N.E.3d 666 [2021] ; People v. White, 172 A.D.3d 1822, 1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ). Finally, we reject defendant's claim that his sentence, which fell within the statutory parameters for a class C felony offense (see Penal Law §§ 70.00[2], [3] ; 110.00, 110.05, 160.10), is harsh and excessive. County Court imposed the agreed-upon sentence, and, upon our review of the record, including the information contained in the presentence report, we find no extraordinary circumstances or abuse of discretion that would warrant modification of the sentence in the interest of justice (see People v. Chase, 168 A.D.3d 1316, 1317, 90 N.Y.S.3d 919 [2019] ).
Egan Jr., J.P., Aarons, Reynolds Fitzgerald and McShan, JJ., concur.
ORDERED that the judgment is affirmed.