THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOCOLBY WALLACE DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10 [1]). We reject defendant's contention that his waiver of the right to appeal is invalid. Here, the oral waiver colloquy, which followed the appropriate model colloquy, establishes that defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Linda R.M., 236 AD3d 1488, 1488 [4th Dept 2025], lv denied 43 NY3d 1047 [2025]; see generally People v Thomas, 34 NY3d 545, 559-564 [2019], cert denied 589 US 1302 [2020]). Contrary to defendant's assertion, “ ‘[t]he fact that the appeal waiver was not reduced to writing is of no moment where, as here, the oral waiver was adequate’ ” (People v Rohadfox, 175 AD3d 1813, 1814 [4th Dept 2019], lv denied 34 NY3d 1019 [2019]; see People v Lopez, 6 NY3d 248, 257 [2006]; People v Thomas, 237 AD3d 1557, 1558 [4th Dept 2025], lv denied 43 NY3d 1059 [2025]).

Defendant contends that reversal is required based on a Brady violation. Inasmuch as “the alleged Brady material was disclosed before the plea,” defendant's “Brady claim is forfeited by his guilty plea” (People v Hill, 188 AD3d 1756, 1756 [4th Dept 2020], lv dismissed 37 NY3d 965 [2021], reconsideration denied 37 NY3d 1096 [2021]; cf. People v Wilson, 159 AD3d 1600, 1600-1601 [4th Dept 2018]). Moreover, even assuming, arguendo, that defendant's contention survives the valid waiver of the right to appeal and is not forfeited by his guilty plea, we conclude that defendant failed to preserve his contention for our review (see People v Chapman, 179 AD3d 1526, 1526 [4th Dept 2020], lv denied 35 NY3d 968 [2020]; see also People v Dempsey, 197 AD3d 1020, 1021 [4th Dept 2021], lv denied 37 NY3d 1160 [2022]; People v McCullough, 128 AD3d 1510, 1511 [4th Dept 2015], lv denied 26 NY3d 1010 [2015]).

Defendant further contends that he was improperly sentenced as a second felony offender because County Court did not ask defendant to admit or deny the period of incarceration the People relied upon to bring his prior felony conviction within the applicable 10-year look-back period (see generally Penal Law § 70.06 [1] [b] [iv], [v]). At sentencing, defendant did not object to his status as a second felony offender and thus failed to preserve his contention for our review (see People v Lindsey, 249 AD3d 1519, 1520-1521 [4th Dept 2026], lv denied 46 NY3d 928 [2026]; People v Mejia, 246 AD3d 828, 829 [2d Dept 2026], lv denied 46 NY3d 928 [2026]; People v Lollie, 204 AD3d 1430, 1431 [4th Dept 2022], lv denied 38 NY3d 1134 [2022]). Contrary to defendant's assertion, his contention is not reviewable under the narrow illegal sentence exception to the preservation requirement because the illegality of the sentence is “not ‘readily discernible from the trial record’ ” (People v Lashley, 37 NY3d 1140, 1141 [2021]; see Mejia, 246 AD3d at 829-830; Lollie, 204 AD3d at 1431). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

Defendant contends that he was denied effective assistance of counsel because defense counsel failed to challenge a supplemental certificate of compliance as illusory, failed to file a motion to withdraw the plea, and failed to investigate exculpatory evidence. Defendant's contention survives his guilty plea only insofar as he demonstrates that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered [into] the plea because of [his] attorney[’s] allegedly poor performance” (People v Rausch, 126 AD3d 1535, 1535 [4th Dept 2015], lv denied 26 NY3d 1149 [2016] [internal quotation marks omitted]; see People v Lewis, 228 AD3d 1247, 1248 [4th Dept 2024], lv denied 42 NY3d 1036 [2024]). In addition, to the extent that defendant's contention is based on matters outside the record on appeal, it must be raised by way of motion pursuant to CPL 440.10 (see People v Dunn, 229 AD3d 1220, 1223 [4th Dept 2024]; Lewis, 228 AD3d at 1248). To the extent that defendant's contention survives his guilty plea and is based on the record before us, we conclude that defendant's contention lacks merit inasmuch as defendant “received an advantageous plea, and ‘nothing in the record casts doubt on the apparent effectiveness of counsel’ ” (People v Shaw, 133 AD3d 1312, 1313 [4th Dept 2015], lv denied 26 NY3d 1150 [2016]; see People v Scott, 204 AD3d 1448, 1448-1449 [4th Dept 2022], lv denied 38 NY3d 1074 [2022]). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant was afforded meaningful representation (see People v Penfold, 229 AD3d 1299, 1300 [4th Dept 2024], lv denied 42 NY3d 1021 [2024]; see generally People v Baldi, 54 NY2d 137, 147 [1981]).

The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentence (see Lopez, 6 NY3d at 255; People v Zakrzewski, 244 AD3d 1798, 1798 [4th Dept 2025], lv denied 45 NY3d 975 [2026]). We have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court