PEOPLE v. PRIME (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Washington County (Kelly S. McKeighan, J.), rendered December 20, 2019, convicting defendant upon his plea of guilty of the crimes of attempted criminal sexual act in the first degree and possessing a sexual performance by a child.

In full satisfaction of a 13–count indictment and another unindicted felony, defendant agreed to plead guilty to attempted criminal sexual act in the first degree and possessing a sexual performance by a child with the understanding that he would be sentenced to a prison term of 12 years, to be followed by 11 years of postrelease supervision, upon his conviction of the former and a lesser, concurrent term of imprisonment upon the latter.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the plea agreement, County Court imposed the agreed-upon sentence and this appeal ensued.

We affirm.  Defendant's challenge to the validity of his waiver of the right to appeal is unpersuasive.  The written waiver is identical to – and County Court's oral waiver colloquy mirrors – the waiver utilized and explanation provided in (People v. Mittler, 225 A.D.3d 1003, 1004, 206 N.Y.S.3d 805 [3d Dept. 2024]), (People v. Robinson, 213 A.D.3d 1002, 1002–1003, 181 N.Y.S.3d 470 [3d Dept. 2023]), (People v. Gatchell, 208 A.D.3d 1549, 1550, 175 N.Y.S.3d 364 [3d Dept. 2022]) and (People v. Ruest, 206 A.D.3d 1174, 1174–1175, 167 N.Y.S.3d 851 [3d Dept. 2022]), and we are therefore satisfied that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Williams, 208 A.D.3d 1499, 1500, 174 N.Y.S.3d 286 [3d Dept. 2022];  People v. Thaxton, 191 A.D.3d 1166, 1167, 142 N.Y.S.3d 245 [3d Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 541, 170 N.E.3d 415 [2021]).  Given the valid appeal waiver, defendant's claim that the agreed-upon sentence is unduly harsh or severe is precluded (see People v. Joseph, 227 A.D.3d 1233, 1234, 211 N.Y.S.3d 592 [3d Dept. 2024];  People v. Cook, 219 A.D.3d 1022, 1023, 192 N.Y.S.3d 804 [3d Dept. 2023], lv denied 40 N.Y.3d 1080, 202 N.Y.S.3d 771, 225 N.E.3d 890 [2023]).

The remaining argument raised by defendant – addressed to the voluntariness and factual sufficiency of his plea – is unpreserved for our review, as defendant failed to make an appropriate postallocution motion, despite having an opportunity to do so prior to sentencing (see People v. Frederick, 220 A.D.3d 1017, 1018, 196 N.Y.S.3d 247 [3d Dept. 2023];  People v. Dunbar, 218 A.D.3d 931, 932, 193 N.Y.S.3d 397 [3d Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023]).  Contrary to defendant's assertion, the narrow exception to the preservation requirement was not triggered, as he did not make any statements during the plea colloquy or at the time of sentencing that negated an element of the charged crimes, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see 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];  People v. Nack, 200 A.D.3d 1197, 1198, 157 N.Y.S.3d 590 [3d Dept. 2021], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 365, 188 N.E.3d 557 [2022]).  To the extent that defendant invites us to take corrective action in the interest of justice, we decline to do so, as County Court's statement regarding the potential consequences of defendant being less than truthful with the court “does not amount to coercion but, rather, represents the type of situational coercion faced by many defendants who are offered a plea deal, which did not render [defendant's] plea involuntary” (People v. Bryant, 207 A.D.3d 886, 889, 172 N.Y.S.3d 199 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted];  see e.g. People v. Nunnally, 224 A.D.3d 992, 993, 205 N.Y.S.3d 250 [3d Dept. 2024], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 229, 236 N.E.3d 1248 [2024]).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Garry, P.J.

Lynch, Reynolds Fitzgerald, Fisher and Powers, JJ., concur.