PEOPLE v. PATTERSON (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Franklin County (Gregory P. Storie, J.), rendered September 6, 2023, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

Defendant was charged in two separate indictments with burglary in the second degree and, in full satisfaction of those instruments and other charged crimes, was offered the opportunity to plead guilty to one count of attempted burglary in the second degree.  In conjunction with this guilty plea, it was agreed upon that defendant would be sentenced to a prison term of five years, to be followed by 21/212 years of postrelease supervision, which was to be served concurrently with a sentence to be imposed in another county.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the plea agreement, and County Court imposed the agreed-upon sentence.  Defendant appeals.

Defendant's initial assertion – that requiring a waiver of the right to appeal as a term and condition of his plea agreement is impermissible – is lacking in merit (see People v. Thomas, 34 N.Y.3d 545, 557–558, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020];  People v. Seaberg, 74 N.Y.2d 1, 7–9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]), as is his claim that the waiver is unenforceable because he acknowledged his guilt prior to waiving his appellate rights (see People v. Muller, 217 A.D.3d 1269, 1270, 192 N.Y.S.3d 306 [3d Dept. 2023], lv denied 40 N.Y.3d 1093, 204 N.Y.S.3d 793, 228 N.E.3d 606 [2024]).  As to the waiver itself, County Court explained that the appeal waiver was separate and distinct from the trial-related rights that defendant would be forfeiting by pleading guilty and expressly delineated the appellate rights that would survive the waiver (see People v. Ferretti, 209 A.D.3d 1173, 1173, 177 N.Y.S.3d 379 [3d Dept. 2022]).  Defendant then executed a detailed written waiver in open court and advised County Court that he had reviewed the waiver with counsel, understood its contents and had no questions relative thereto (see People v. Muller, 217 A.D.3d at 1270, 192 N.Y.S.3d 306;  People v. Ferretti, 209 A.D.3d at 1174, 177 N.Y.S.3d 379).  To the extent that the waiver contained overbroad language, “both the oral colloquy and the written waiver itself made clear that some appellate review survived” (People v. Ferretti, 209 A.D.3d at 1174, 177 N.Y.S.3d 379), and we are therefore satisfied that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Drake, 217 A.D.3d 1273, 1273, 192 N.Y.S.3d 292 [3d Dept. 2023]).

Despite defendant's challenge to the validity of his appeal waiver, his sole remaining contention challenging the voluntariness of his plea – premised upon the timeliness and sufficiency of County Court's recitation of defendant's Boykin rights – survives his valid appeal waiver (see People v. Gayle, 221 A.D.3d 1061, 1062, 199 N.Y.S.3d 720 [3d Dept. 2023], lv denied 41 N.Y.3d 1002, 213 N.Y.S.3d 223, 236 N.E.3d 1242 [2024]).  Nevertheless, this contention is unpreserved in the absence of an appropriate postallocution motion (see People v. Bailey, 224 A.D.3d 1044, 1045, 205 N.Y.S.3d 546 [3d Dept. 2024];  People v. Gayle, 221 A.D.3d at 1062, 199 N.Y.S.3d 720), and the narrow exception to the preservation requirement does not apply (see 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]).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Garry, P.J., Egan Jr., Pritzker, Powers and Mackey, JJ., concur.