People v. Loya

Garry, P.J.

Erin C. Morigerato, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella III of counsel), for respondent.

Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a judgment of the County Court of Saratoga County (James A. Murphy III, J.), rendered January 11, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant, who was charged by felony complaints with various drug-related offenses, waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of attempted criminal sale of a controlled substance in the third degree. In full satisfaction of the superior court information and other uncharged crimes, defendant agreed to plead guilty to the subject crime with the understanding that he would be sentenced to a prison term of 1½ years followed by a period of postrelease supervision, to be determined by County Court, ranging from 1½ to 3 years. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the agreement, and County Court sentenced defendant – as a second felony offender – to a prison term of 1½ years followed by three years of postrelease supervision. Defendant appeals.

We affirm. The People concede – and our review of the record confirms – that the waiver of appeal is invalid. The written waiver contained overbroad language purporting to erect an absolute bar to an appeal, and County Court's oral colloquy failed to sufficiently explain the nature and ramifications of the appeal waiver, cure the deficiencies in the written waiver or otherwise convey to defendant that some appellate review survived (see People v. Retell, 211 A.D.3d 1181, 1182, 179 N.Y.S.3d 462 [3d Dept. 2022] ; People v. Pompey, 203 A.D.3d 1411, 1412, 164 N.Y.S.3d 718 [3d Dept. 2022], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 376, 188 N.E.3d 568 [2022] ; People v. Mayeaux, 197 A.D.3d 1443, 1444, 153 N.Y.S.3d 692 [3d Dept. 2021], lv denied 37 N.Y.3d 1147, 159 N.Y.S.3d 339, 180 N.E.3d 503 [2021] ).

In light of the invalid appeal waiver, defendant's challenge to the severity of the sentence imposed is not precluded (see People v. Nelson, 196 A.D.3d 972, 972, 148 N.Y.S.3d 410 [3d Dept. 2021], lv denied 37 N.Y.3d 1028, 153 N.Y.S.3d 430, 175 N.E.3d 455 [2021] ). However, upon reviewing the record and considering all of the relevant circumstances, we do not find the sentence imposed to be unduly harsh or severe (see CPL 470.15[6][b] ). Defendant's related claim that County Court failed "to comply with the provision of CPL 400.21(3) requiring an inquiry as to whether defendant wanted to controvert any of the allegations in the predicate felony statement is unpreserved for our review given the lack of an objection by defendant at sentencing" ( People v. Melton, 136 A.D.3d 1069, 1070, 24 N.Y.S.3d 440 [3d Dept. 2016], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016] ; see People v. Huntley, 177 A.D.3d 1032, 1034, 114 N.Y.S.3d 484 [3d Dept. 2019], lv denied 34 N.Y.3d 1131, 118 N.Y.S.3d 553, 141 N.E.3d 509 [2020] ; People v. Sands, 157 A.D.3d 1136, 1138, 69 N.Y.S.3d 745 [3d Dept. 2018], lv denied 31 N.Y.3d 986, 77 N.Y.S.3d 664, 102 N.E.3d 441 [2018] ). "In any event, County Court was not obligated to expressly advise defendant of his right to contest the constitutionality of the prior conviction" ( People v. Melton, 136 A.D.3d at 1070, 24 N.Y.S.3d 440 [internal quotation marks and citations omitted]; see People v. Thomas, 175 A.D.3d 1614, 1615, 108 N.Y.S.3d 523 [3d Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 751, 138 N.E.3d 480 [2019] ).

Defendant's challenge to the voluntariness of his plea, including any assertion that County Court did not sufficiently apprise him of his Boykin rights, is unpreserved for our review as defendant failed to make an appropriate postallocution motion – despite having an opportunity to do so prior to sentencing (see 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] ; People v. Dye, 210 A.D.3d 1192, 1193, 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] ; People v. Podeswa, 205 A.D.3d 1139, 1140, 167 N.Y.S.3d 640 [3d Dept. 2022], lv denied 38 N.Y.3d 1135, 172 N.Y.S.3d 857, 193 N.E.3d 522 [2022] ; People v. Crampton, 201 A.D.3d 1020, 1022, 159 N.Y.S.3d 263 [3d Dept. 2022], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022] ). The narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during the plea colloquy that negated an element of the charged crime, cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Pompey, 203 A.D.3d at 1412, 164 N.Y.S.3d 718 ; People v. Crampton, 201 A.D.3d at 1022, 159 N.Y.S.3d 263 ). Defendant's ineffective assistance of counsel claim – to the extent that it impacts upon the voluntariness of his plea – is similarly unpreserved (see People v. West, 210 A.D.3d at 1195, 178 N.Y.S.3d 266 ; People v. DeJesus, 210 A.D.3d 1195, 1196, 176 N.Y.S.3d 887 [3d Dept. 2022], lv denied 39 N.Y.3d 985, 181 N.Y.S.3d 195, 201 N.E.3d 812 [2022] ). The balance of defendant's ineffective assistance of counsel claim, including his assertion that counsel failed to, among other things, properly investigate his case, explore potential defenses and/or explain the consequences of a guilty plea, "implicates matters outside of the record and, as such, is more properly the subject of a CPL article 440 motion" ( People v. Elawar, 204 A.D.3d 1247, 1249, 165 N.Y.S.3d 385 [3d Dept. 2022], lv denied 38 N.Y.3d 1133, 172 N.Y.S.3d 842, 193 N.E.3d 507 [2022] ; see People v. Sanders, 203 A.D.3d 1403, 1404, 161 N.Y.S.3d 856 [3d Dept. 2022] ). Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Lynch, Pritzker, Reynolds Fitzgerald and McShan, JJ., concur.

ORDERED that the judgment is affirmed.