PEOPLE v. CARDEN (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Andra L. Ackerman, J.), rendered August 1, 2022, convicting defendant upon his plea of guilty of the crime of bail jumping in the second degree.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with bail jumping in the second degree.  He pleaded guilty to that crime and waived his right to appeal.  In accordance with the terms of the plea agreement, he was sentenced, as a second felony offender, to a prison term of 2 to 4 years, to run concurrently to a sentence imposed on another charge.¹  Defendant appeals.

Initially, defendant's challenge to the voluntariness of his guilty plea – based in part upon the alleged ineffective assistance of counsel – survives his unchallenged appeal waiver (see People v. Nolan, 224 A.D.3d 996, 997, 202 N.Y.S.3d 832 [3d Dept. 2024], lv denied 42 N.Y.3d 929, 216 N.Y.S.3d 93, 240 N.E.3d 812 [2024];  People v. Dickerson, 198 A.D.3d 1190, 1192, 156 N.Y.S.3d 526 [3d Dept. 2021]).  Nevertheless, his claim in this regard is unpreserved, as the record does not disclose that he made an appropriate postallocution motion despite having the opportunity to do so, and the narrow exception to the preservation rule is inapplicable (see People v. Atkins, 222 A.D.3d 1043, 1043, 201 N.Y.S.3d 560 [3d Dept. 2023], lv denied 41 N.Y.3d 982, 210 N.Y.S.3d 743, 234 N.E.3d 359 [2024];  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]).  To the extent that defendant's ineffective assistance of counsel claim does not impact upon the voluntariness of his plea, it is precluded by his unchallenged appeal waiver (see People v. McQuilla, 210 A.D.3d 1191, 1192, 178 N.Y.S.3d 264 [3d Dept. 2022];  People v. Golden, 171 A.D.3d 1357, 1357, 98 N.Y.S.3d 662 [3d Dept. 2019]).  Defendant's challenge to the severity of the agreed-upon sentence is likewise precluded by his waiver of the right to appeal (see People v. Sutton, 221 A.D.3d 1185, 1187, 200 N.Y.S.3d 480 [3d Dept. 2023], lv denied 41 N.Y.3d 967, 208 N.Y.S.3d 525, 232 N.E.3d 203 [2024];  People v. DeJesus, 210 A.D.3d 1195, 1196, 176 N.Y.S.3d 887 [3d Dept. 2022], lv denied 39 N.Y.3d 985, 181 N.Y.S.3d 195, 201 N.E.3d 812 [2022]).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   As part of the negotiated plea deal that resolved numerous other charges, defendant also pleaded guilty to criminal possession of a weapon in the second degree, and that conviction is the subject of a separate appeal (People v. Carden, ––– AD3d –––– [3d Dept 2024] [decided herewith]).

Pritzker, J.

Aarons, J.P., Ceresia, McShan and Mackey, JJ., concur.