PEOPLE v. WERNER (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (James A. Murphy III, J.), rendered January 7, 2021, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.

In satisfaction of various charges pending within Saratoga County, defendant waived indictment, pleaded guilty to a superior court information charging him with criminal contempt in the first degree and agreed to waive his right to appeal.  Consistent with the plea agreement, County Court sentenced defendant, as a second felony offender, to a prison term of 11/212 to 3 years.  Defendant appeals.

Initially, we agree with defendant that his waiver of the right to appeal is invalid as the written waiver of his right to appeal is overly broad in that it purports to encompass all potential appellate issues, and County Court's brief oral colloquy was not sufficient to cure the deficiencies in the written waiver or otherwise establish that defendant understood that some appellate rights survive (see People v. Vazquez, 222 A.D.3d 1104, 1105, 201 N.Y.S.3d 766 [3d Dept. 2023], lv denied 41 N.Y.3d 944, 206 N.Y.S.3d 245, 229 N.E.3d 1138 [2024];  People v. Elston, 217 A.D.3d 1274, 1274–1275, 192 N.Y.S.3d 701 [3d Dept. 2023];  People v. Loya, 215 A.D.3d 1181, 1182, 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]).  In light of the invalid appeal waiver, defendant's challenge to the severity of the sentence imposed is not precluded.  Although defendant contends that alleged mitigating factors warrant an alternative sentence of probation, we disagree and find that the agreed-upon sentence, which is the statutory minimum prison term for a second felony offender (see Penal Law § 70.06[3][e];  [4][b]), is not unduly harsh or severe under the circumstances (see CPL 470.15[6][b]).

Regardless of the validity of the appeal waiver, defendant's contentions that his plea was not knowing, voluntary and intelligent and his claim of ineffective assistance of counsel – to the extent that it implicates the voluntariness of his plea – are unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion despite having an opportunity to do so, and a review of the record does not disclose any basis to warrant the application of the narrow exception to the preservation requirement (see People v. Tucker, 222 A.D.3d 1038, 1041–1042, 200 N.Y.S.3d 798 [3d Dept. 2023];  People v. Atkins, 222 A.D.3d 1043, 1043–1044, 201 N.Y.S.3d 560 [3d Dept. 2023], lv denied ––– N.Y.3d ––––, 2024 WL 2159275 [Apr. 26, 2024]).  Were we to address the issues, we would find them to be without merit as the record reflects that defendant was sufficiently apprised of the rights he was forfeiting by pleading guilty and he assured County Court that he had sufficient time to speak with and was satisfied with counsel, that he understood the consequences of pleading guilty and that he was pleading guilty voluntarily (see 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. Hawkins, 207 A.D.3d 814, 815–816, 170 N.Y.S.3d 732 [3d Dept. 2022]).  To the extent that defendant asserts that counsel did not properly meet with him, explore potential defenses or meet with prospective witnesses, such contentions involve matters outside the record that are more appropriately addressed in the context of a CPL article 440 motion (see People v. Finn, 215 A.D.3d 1179, 1181, 187 N.Y.S.3d 447 [3d Dept. 2023], lv denied 40 N.Y.3d 928, 192 N.Y.S.3d 500, 213 N.E.3d 642 [2023];  People v. Devane, 212 A.D.3d 894, 896, 180 N.Y.S.3d 732 [3d Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 840, 208 N.E.3d 68 [2023];  People v. Ramey, 123 A.D.3d 1290, 1291, 996 N.Y.S.2d 793 [3d Dept. 2014], lv denied 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 [2015]).

ORDERED that the judgment is affirmed.

Mackey, J.

Garry, P.J., Egan Jr., Clark and Lynch, JJ., concur.