PEOPLE v. WHITE (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Essex County (Richard B. Meyer, J.), rendered April 25, 2022, which resentenced defendant following his conviction of the crime of assault in the second degree.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with assault in the second degree pursuant to a plea agreement that also satisfied a related weapons charge.  The People, in turn, promised to recommend a sentence of four months in jail to be followed by five years of probation, with sentencing left to the discretion of County Court, which advised defendant that a prison sentence of up to seven years could be imposed on the charge but made no sentencing commitment.  Defendant then pleaded guilty to assault in the second degree and waived his right to appeal both orally and in writing.  Thereafter, in June 2021, the court sentenced defendant to a prison term of six years to be followed by five years of postrelease supervision (hereinafter PRS).  Roughly 10 months later, upon discovering that the period of PRS imposed was illegal, the court resentenced defendant to six years in prison followed by two years of PRS, and we dismissed defendant's appeal from the June 2021 judgment as moot (208 A.D.3d 1391, 1392, 173 N.Y.S.3d 686 [3d Dept. 2022]).  Defendant appeals from the judgment resentencing him.

We affirm.  Defendant's challenge to the voluntariness of his plea based upon his assertion that he was not informed at the time of his plea that a term of PRS could be imposed, although surviving his appeal waiver, is unpreserved for our review absent evidence that he made an appropriate postallocution motion, despite having ample opportunity to do so (see People v. Crossley, 191 A.D.3d 1046, 1047, 137 N.Y.S.3d 746 [3d Dept. 2021], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 414, 174 N.E.3d 354 [2021];  People v. Miller, 190 A.D.3d 1029, 1030, 138 N.Y.S.3d 715 [3d Dept. 2021]).  In this regard, after an illegal term of PRS was initially imposed in 2021, defendant proceeded with resentencing in 2022 without raising any objection to the new term of PRS or seeking to withdraw his guilty plea, notwithstanding being expressly questioned about whether he desired to do so at that time (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  People v. Gamble, 190 A.D.3d 1022, 1025, 138 N.Y.S.3d 729 [3d Dept. 2021], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 134, 167 N.E.3d 1269 [2021];  compare People v. Louree, 8 N.Y.3d 541, 546, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007]), and the narrow exception to the preservation requirement was not triggered (see People v. Kimball, 213 A.D.3d 1028, 1030, 183 N.Y.S.3d 198 [3d Dept. 2023];  People v. Ramos, 179 A.D.3d 1395, 1397, 118 N.Y.S.3d 291 [3d Dept. 2020], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 11, 148 N.E.3d 475 [2020]).  Defendant's remaining contention that the six-year prison term imposed is unduly harsh and severe is foreclosed by his waiver of appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Curry, 158 A.D.3d 898, 899, 68 N.Y.S.3d 782 [3d Dept. 2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018];  People v. White, 141 A.D.3d 463, 464, 36 N.Y.S.3d 9 [1st Dept. 2016], lv denied 28 N.Y.3d 975, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016];  People v. Hare, 110 A.D.3d 1117, 1118, 972 N.Y.S.2d 361 [3d Dept. 2013];  People v. Sofia, 62 A.D.3d 1159, 1159–1160, 881 N.Y.S.2d 185 [3d Dept. 2009]).¹

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant's challenge to the validity of the appeal waiver was raised for the first time in his reply brief and, thus, is not properly before this Court (see People v. Guzman–Moore, 144 A.D.3d 1267, 1268 n., 40 N.Y.S.3d 289 [3d Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 379, 76 N.E.3d 1082 [2017]).

McShan, J.

Egan Jr, J.P., Lynch, Aarons and Fisher, JJ., concur.