PEOPLE v. TOWNSON (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Tompkins County (Scott Miller, J.), rendered January 17, 2023, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with criminal possession of a weapon in the second degree and menacing in the second degree.  In full satisfaction of that instrument, as well as additional charges pending in another county, defendant agreed to plead guilty to the reduced charge of attempted criminal possession of a weapon in the second degree.  The plea agreement, which was reduced to writing, expressly acknowledged that both the People and defendant were free to recommend “[a]ny legal sentence” that could be imposed.  After the People made clear that they would be seeking a state prison term – a point that defense counsel initially suggested was at variance with his understanding of the plea agreement – and County Court advised defendant of his potential sentencing exposure, defendant indicated that he wished to go forward with the plea.  Defendant pleaded guilty to the reduced charge, and County Court subsequently sentenced defendant to a prison term of seven years, to be followed by three years of postrelease supervision.  Defendant appeals.

Defendant contends that his plea was induced by an off-the-record, unfulfilled promise – namely, that the People would not be seeking a state prison term.  “Although this argument implicates the voluntariness of defendant's plea and thus survives his unchallenged waiver of the right to appeal, it is unpreserved for our review absent evidence of an appropriate postallocution motion, and the narrow exception to the preservation requirement was not triggered here” (People v. West, 189 A.D.3d 1822, 1823, 138 N.Y.S.3d 260 [3d Dept. 2020] [citations omitted], lv dismissed 37 N.Y.3d 975, 150 N.Y.S.3d 683, 172 N.E.3d 795 [2021], lv denied 37 N.Y.3d 1149, 159 N.Y.S.3d 325, 180 N.E.3d 489 [2021];  see People v. Elie, 231 A.D.3d 1200, 1202, 217 N.Y.S.3d 755 [3d Dept. 2024];  People v. Demonia, 210 A.D.3d 1140, 1141, 175 N.Y.S.3d 912 [3d Dept. 2022], lv denied 40 N.Y.3d 928, 192 N.Y.S.3d 513, 213 N.E.3d 656 [2023]).  In any event, “off-the-record promises made in the plea bargaining process will not be recognized where they are flatly contradicted by the record” (Matter of Benjamin S., 55 N.Y.2d 116, 120, 447 N.Y.S.2d 905, 432 N.E.2d 777 [1982];  accord People v. Malloy, 152 A.D.3d 968, 972, 60 N.Y.S.3d 515 [3d Dept. 2017], lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 583, 89 N.E.3d 1263 [2017];  see People v. Crowell, 130 A.D.3d 1362, 1363, 15 N.Y.S.3d 494 [3d Dept. 2015], lv denied 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 [2016], cert denied 580 U.S. 1202, 137 S.Ct. 1333, 197 L.Ed.2d 526 [2017]).  Given defense counsel's acknowledgment that it was “clear” that the People were seeking a state prison term – followed by defendant's stated willingness to proceed with the plea – “we are satisfied that the minutes of the plea colloquy amply refute any claim of off-the-record promises allegedly made to defendant” (People v. Meddaugh, 150 A.D.3d 1545, 1547, 55 N.Y.S.3d 777 [3d Dept. 2017]).

As to defendant's related ineffective assistance of counsel claim, insofar as it impacts the voluntariness of his plea, this claim survives his unchallenged appeal waiver but is similarly unpreserved for our review (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. Bethea, 133 A.D.3d 1033, 1034, 19 N.Y.S.3d 191 [3d Dept. 2015], lv denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016]).  To the extent that his arguments on this point involve matters outside of the record, they are more properly addressed in the context of a CPL article 440 motion (see People v. Ulmer, 226 A.D.3d 1259, 1260, 210 N.Y.S.3d 329 [3d Dept. 2024], lv denied 42 N.Y.3d 930, 216 N.Y.S.3d 95, 240 N.E.3d 814 [2024];  People v. Nolan, 224 A.D.3d at 997, 202 N.Y.S.3d 832).  Finally, defendant's challenge to the severity of the sentence imposed, as well as his claim of judicial bias, are precluded by his unchallenged appeal waiver (see People v. Torres, 218 A.D.3d 1046, 1046–1047, 194 N.Y.S.3d 795 [3d Dept. 2023], lv denied 40 N.Y.3d 1082, 202 N.Y.S.3d 759, 225 N.E.3d 879 [2023];  People v. Nack, 200 A.D.3d 1197, 1199, 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];  People v. Lynn, 106 A.D.3d 1280, 1280, 964 N.Y.S.2d 913 [3d Dept. 2013]).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Powers, J.

Aarons, J.P., Pritzker, Lynch and Ceresia, JJ., concur.