People v. Snare

Garry, P.J.

Timothy S. Brennan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

Garry, P.J. In full satisfaction of a seven-count indictment and potential future charges brought against defendant for any prior burglaries that he might have allegedly committed in Schenectady County between March 10, 2014 and January 6, 2015, defendant pleaded guilty to burglary in the first degree and executed a waiver of the right to appeal, orally and in writing. Consistent with the terms of the plea agreement, defendant was sentenced, as a persistent violent felony offender, to a prison term of 20 years to life. Defendant appeals.

We affirm. The record reflects that, at the outset of the plea proceeding, County Court advised defendant that the waiver of the right to appeal was a condition of the plea agreement, and defendant acknowledged his understanding of the plea agreement and its terms (see People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018] ; People v. Charles, 163 A.D.3d 1362, 1362, 82 N.Y.S.3d 221 [2018], lv denied 32 N.Y.3d 1063, 89 N.Y.S.3d 118, 113 N.E.3d 952 [2018] ; People v. Gilbert, 145 A.D.3d 1196, 1196, 43 N.Y.S.3d 556 [2016], lvs denied 28 N.Y.3d 1184, 1187, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ). County Court then advised defendant that his right to appeal was "separate and apart" from the trial-related rights automatically forfeited by his guilty plea, and defendant acknowledged that he understood the nature of the waiver and that he was voluntarily waiving his right to appeal the conviction and agreed-upon sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Rogers, 162 A.D.3d 1410, 1410, 75 N.Y.S.3d 923 [2018] ; People v. Tucker, 161 A.D.3d 1481, 1482, 78 N.Y.S.3d 450 [2018], lv denied 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ; People v. Stein, 161 A.D.3d 1389, 1390, 77 N.Y.S.3d 579 [2018] ). Defendant, after consulting with counsel, also signed a written waiver of appeal in open court — which adequately described the nature and scope of the appellate rights being waived and stated, among other things, that defendant was waiving his right to appeal in consideration of the plea agreement — and County Court confirmed that he had no questions about the written waiver (see People v. Johnson, 170 A.D.3d 1274, 1275, 95 N.Y.S.3d 467 [2019] ; People v. Watkins, 166 A.D.3d 1239, 1240, 88 N.Y.S.3d 281 [2018], lv denied 33 N.Y.3d 955, 100 N.Y.S.3d 179, 123 N.E.3d 838 [2019] ; People v. Stein, 161 A.D.3d at 1390, 77 N.Y.S.3d 579 ). Accordingly, we find that defendant's combined oral and written waiver of appeal was knowing, intelligent and voluntary (see People v. Cherry, 166 A.D.3d at 1221, 86 N.Y.S.3d 355 ; People v. Turner, 158 A.D.3d 892, 892, 70 N.Y.S.3d 610 [2018] ). Given the valid appeal waiver, defendant's claim that the agreed-upon sentence imposed was harsh and excessive is precluded (see People v. Pacherille, 25 N.Y.3d 1021, 1023, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Douglas, 168 A.D.3d 1285, 1286, 91 N.Y.S.3d 814 [2019] ; People v. Bridge, 166 A.D.3d 1168, 1169, 86 N.Y.S.3d 345 [2018], lv denied 32 N.Y.3d 1124, 93 N.Y.S.3d 262, 117 N.E.3d 821 [2018] ).

Finally, although defendant's claim of ineffective assistance of counsel survives the valid appeal waiver because it impacts the voluntariness of his plea (see People v. Danielson, 170 A.D.3d 1430, 1431, 96 N.Y.S.3d 754 [2019], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019] ; People v. Johnson, 170 A.D.3d at 1275, 95 N.Y.S.3d 467 ; People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019] ), such challenge is unpreserved for our review in the absence of an appropriate postallocution motion. To the extent that defendant alleges that counsel failed to adequately explain the terms of the plea agreement with him, this claim is based upon facts outside the record and is more properly the subject of a CPL article 440 motion (see People v. Hackett, 167 A.D.3d 1090, 1095, 89 N.Y.S.3d 429 [2018] ; People v. Trimm, 129 A.D.3d 1215, 1216, 10 N.Y.S.3d 738 [2015] ; People v. Keaton, 122 A.D.3d 954, 955, 994 N.Y.S.2d 473 [2014], lv denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ).

Lynch, Clark, Devine and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.