PEOPLE v. LEROUX (2025)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Washington County (Kelly McKeighan, J), rendered October 20, 2022, upon her plea of guilty of the crime of burglary in the first degree and, (2) from an order of said court, rendered January 6, 2023, which resentenced defendant.

In satisfaction of an eight-count indictment, defendant pleaded guilty to burglary in the first degree and agreed to waive her right to appeal.  County Court sentenced defendant, in accordance with the terms of the plea agreement, to a prison term of seven years, to be followed by two years of postrelease supervision.  Subsequently, the Department of Corrections and Community Supervision advised County Court that the postrelease period of defendant's sentence was impermissible.  Thereafter, County Court, after affording defendant an opportunity to withdraw her plea, amended the sentence to the extent of resentencing defendant to a postrelease supervision period of 21/212 years.  Defendant appeals.

Contrary to her contention, defendant validly waived her right to appeal.  County Court advised defendant of the separate and distinct nature of the right to appeal and informed her that some rights survived the waiver of her right to appeal, which defendant acknowledged she understood (see People v. Dobbs, 217 A.D.3d 1275, 1276, 192 N.Y.S.3d 327 [3d Dept. 2023];  People v. Robinson, 213 A.D.3d 1002, 1002–1003, 181 N.Y.S.3d 470 [3d Dept. 2023]).  Defendant also executed a comprehensive written appeal waiver in open court, assuring the court that she had reviewed it with counsel, understood it and had no questions (see 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]).  Upon our review of the record, we are satisfied that defendant knowingly, voluntarily and intelligently waived her right to appeal (see People v. Dobbs, 217 A.D.3d at 1276, 192 N.Y.S.3d 327;  People v. Williams, 208 A.D.3d 1499, 1500, 174 N.Y.S.3d 286 [3d Dept. 2022]).  Given the valid appeal waiver, defendant's challenge to the perceived severity of the agreed-upon sentence is foreclosed (see 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 at 1003, 181 N.Y.S.3d 470).

Although defendant's challenge to the voluntariness of her plea and claim of ineffective assistance of counsel – to the extent that it impacts the voluntariness of her plea – are not precluded by the valid appeal waiver, they are nevertheless unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion, despite an opportunity to do so, and the narrow exception to the preservation requirement was not triggered here (see People v. Graham, 230 A.D.3d 1476, 1477, 218 N.Y.S.3d 736 [3d Dept. 2024];  People v. Arthur, 228 A.D.3d 1133, 1133, 213 N.Y.S.3d 543 [3d Dept. 2024], lv denied 42 N.Y.3d 969, 219 N.Y.S.3d 610, 244 N.E.3d 1068 [2024]).  To the extent that defendant's ineffective assistance of counsel claim is premised upon counsel's alleged failures to make adequate efforts to review the indictment and pleadings for possible defects or investigate potential defenses, such claims implicate matters outside the record that are more appropriately addressed in the context of a CPL article 440 motion (see People v. Graham, 230 A.D.3d at 1477, 218 N.Y.S.3d 736;  People v. Wimberly, 228 A.D.3d 1177, 1178, 214 N.Y.S.3d 235 [3d Dept. 2024], lv denied 42 N.Y.3d 1022, 221 N.Y.S.3d 489, 246 N.E.3d 932 [2024]).

ORDERED that the judgment and the order are affirmed.

McShan, J.

Clark, J.P., Reynolds Fitzgerald, Ceresia and Powers, JJ., concur.