PEOPLE v. WILKERSON (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Mark J. Caruso, J.), rendered January 25, 2019, convicting defendant upon his plea of guilty of the crime of criminally negligent homicide.

Defendant was charged in a five-count indictment with various charges, including manslaughter in the second degree.  Following a suppression hearing, but prior to a decision thereon, defendant pleaded guilty to criminally negligent homicide in satisfaction of the indictment and purportedly waived the right to appeal.  County Court thereafter sentenced defendant to the agreed-upon prison term of 1 to 3 years.  Defendant appeals.

Initially, we find that defendant did not validly waive the right to appeal “as the written waiver is overbroad and inaccurate, and County Court did not overcome the overbroad language by ensuring that defendant understood that some appellate and collateral review survived an appeal waiver” (People v. Faulkner, 217 A.D.3d 1143, 1143, 189 N.Y.S.3d 831 [3d Dept. 2023] [internal quotation marks, ellipsis, brackets and citations omitted];  see People v. Faublas, 216 A.D.3d 1358, 1358, 189 N.Y.S.3d 828 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 756, 215 N.E.3d 1197 [2023]).  Defendant's challenges to the voluntariness of his plea and his claim of ineffective assistance of counsel, to the extent it implicates the voluntariness of his plea, are unpreserved for our review as the record does not indicate that he made an appropriate postallocution motion (see People v. Vilbrin, 183 A.D.3d 1012, 1013, 123 N.Y.S.3d 297 [3d Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 861, 151 N.E.3d 543 [2020];  People v. White, 172 A.D.3d 1822, 1823–1824, 101 N.Y.S.3d [3d Dept. 2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019]), and the narrow exception to the preservation rule was not triggered (see People v. Lomack, 217 A.D.3d 1281, 1282, 192 N.Y.S.3d 703 [3d Dept. 2023], lv denied 40 N.Y.3d 951, 195 N.Y.S.3d 678, 217 N.E.3d 699 [2023];  People v. Loya, 215 A.D.3d 1181, 1183, 187 N.Y.S.3d 444 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 502, 213 N.E.3d 644 [2023]).  Defendant's remaining claim of ineffective assistance of counsel that is premised on counsel's representation at the suppression hearing is foreclosed by his guilty plea (see People v. Darby, 206 A.D.3d 1165, 1169, 170 N.Y.S.3d 279 [3d Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 50, 194 N.E.3d 757 [2022];  People v. Burks, 187 A.D.3d 1405, 1408, 133 N.Y.S.3d 333 [3d Dept. 2020], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 149, 167 N.E.3d 1284 [2021]).

ORDERED that the judgment is affirmed.

Reynolds Fitzgerald, J.

Clark, J.P., Aarons, Fisher and McShan, JJ., concur.