PEOPLE v. MATTHEWS (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (William A. Favreau, J.), rendered April 11, 2019, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree and conspiracy in the fourth degree.

In satisfaction of a three-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and conspiracy in the fourth degree and agreed to waive his right to appeal.  In accordance with the terms of the plea agreement, County Court sentenced defendant to a prison term of seven years followed by three years of postrelease supervision on the controlled substance conviction and a lesser concurrent prison term for the conspiracy conviction, to be served concurrently with a previously imposed sentence.  Defendant appeals.

While defendant's challenge to the voluntariness of his plea survives even a valid waiver of the right to appeal, his contention is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion despite having an opportunity to do so (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. Patterson, 224 A.D.3d 994, 995, 204 N.Y.S.3d 624 [3d Dept. 2024], lv denied 41 N.Y.3d 985, 210 N.Y.S.3d 735, 234 N.E.3d 351 [2024];  People v. Ryals, 224 A.D.3d 938, 938, 204 N.Y.S.3d 331 [3d Dept. 2024]).  Further, we are unpersuaded by defendant's contention that the narrow exception to the preservation rule is applicable.  Although at an earlier plea proceeding defendant denied certain conduct with respect to the conspiracy charge, County Court declined to continue with the plea proceeding and adjourned the matter.  At a court appearance two months later, defendant informed the court that, after having sufficient time to confer with counsel, he wished to accept the terms of a new negotiated plea agreement and proceeded to unequivocally plead guilty to criminal sale of a controlled substance in the third degree and conspiracy in the fourth degree.  A review of that plea colloquy reflects that defendant made no statements that negated any elements of the crimes or called into question the voluntariness of the plea so as to implicate the narrow exception to the preservation rule (see People v. Head, 225 A.D.3d 1004, 1005, 206 N.Y.S.3d 803 [3d Dept. 2024];  People v. Hudson, 130 A.D.3d 1320, 1320, 14 N.Y.S.3d 231 [3d Dept. 2015];  People v. Bethea, 19 A.D.3d 813, 814, 797 N.Y.S.2d 158 [3d Dept. 2005]).

As for defendant's contention that the sentence was cruel and unusual under the Eighth and Fourteenth Amendments, this argument is not preserved for our review given that he did not raise it before County Court (see People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 [2017];  People v. Garcia–Reinaldo, 223 A.D.3d 971, 971, 200 N.Y.S.3d 553 [3d Dept. 2024], lv denied 41 N.Y.3d 965, 208 N.Y.S.3d 537, 232 N.E.3d 215 [2024];  People v. Lyons, 200 A.D.3d 1222, 1226, 157 N.Y.S.3d 594 [3d Dept. 2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 723, 181 N.E.3d 1151 [2022];  People v. McMillan, 185 A.D.3d 1208, 1213, 128 N.Y.S.3d 85 [3d Dept. 2020], lv denied 35 N.Y.3d 1114, 133 N.Y.S.3d 532, 158 N.E.3d 549 [2020]).

ORDERED that the judgment is affirmed.

Aarons, J.P., Lynch, Ceresia, McShan and Powers, JJ., concur.