PEOPLE v. BENSON (2012)

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), entered May 19, 2011, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In full satisfaction of a four-count indictment and other pending charges, defendant waived his right to appeal, pleaded guilty to criminal sale of a controlled substance in the third degree and thereafter was sentenced to the agreed-upon prison term of two years followed by two years of postrelease supervision. Defendant now appeals contending, among other things, that his plea was involuntary.

We affirm. Initially, to the extent that defendant challenges his waiver of the right to appeal, we are satisfied—based upon our review of the plea colloquy and the written waiver executed by defendant—that defendant was both apprised of and clearly understood the rights that he was forfeiting (see People v. Santana, 95 A.D.3d 1503, 1503, 944 N.Y.S.2d 406 [2012]; People v. Empey, 73 A.D.3d 1387, 1388, 901 N.Y.S.2d 756 [2010], lv. denied 15 N.Y.3d 804, 908 N.Y.S.2d 164, 934 N.E.2d 898 [2010] ). Accordingly, we find defendant's waiver to be knowing, intelligent and voluntary.

As to the balance of defendant's claims, any assertion that his plea allocution was factually insufficient is foreclosed by his valid waiver of the right to appeal and, further, is unpreserved for our review as there is no indication on this record that defendant moved to withdraw his plea or vacate the underlying judgment of conviction (see People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012], lv. denied 19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012]; People v. Richardson, 83 A.D.3d 1290, 1291, 920 N.Y.S.2d 752 [2011], lv. denied 17 N.Y.3d 821, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). Although defendant's challenge to the voluntariness of his plea—including his assertion that the plea was induced by an unfulfilled promise that he would be admitted to a shock incarceration program—survives the appeal waiver (see People v. Robinson, 86 A.D.3d 719, 720, 926 N.Y.S.2d 751 [2011], lv. denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012]; People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539 [2011], lv. denied 17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809 [2011] ), defendant's arguments on this point are unpreserved absent evidence of an appropriate postallocution motion (see People v. Taylor, 89 A.D.3d 1143, 1143–1144, 931 N.Y.S.2d 918 [2011]; People v. Planty, 85 A.D.3d 1317, 1317–1318, 925 N.Y.S.2d 240 [2011], lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). Moreover, the narrow exception to the preservation requirement is inapplicable here, as defendant did not make any statements during the course of the plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Board, 75 A.D.3d 833, 833, 906 N.Y.S.2d 155 [2010]; People v. Glynn, 73 A.D.3d 1290, 1291, 900 N.Y.S.2d 513 [2010] ). Were we to consider defendant's arguments, we would find them to be lacking in merit. Simply put, neither defendant's eligibility for a shock incarceration program nor his admission thereto was a condition of his plea (see People v. Williams, 84 A.D.3d at 1418, 924 N.Y.S.2d 539; People v. Vanguilder, 32 A.D.3d 1110, 1110, 821 N.Y.S.2d 492 [2006], lv. denied 7 N.Y.3d 904, 826 N.Y.S.2d 613, 860 N.E.2d 75 [2006] ),¹ and the record before us does not support defendant's claim of coercion (see People v. Richardson, 83 A.D.3d at 1291, 920 N.Y.S.2d 752).

With respect to defendant's ineffective assistance of counsel claim, to the extent that such claim impacts upon the voluntariness of defendant's plea, it survives the otherwise valid waiver of the right to appeal (see People v. Jimenez, 96 A.D.3d 1109, 1110, 945 N.Y.S.2d 583 [2012]; People v. Planty, 85 A.D.3d at 1318, 925 N.Y.S.2d 240) but, absent an appropriate motion, is unpreserved for our review (see People v. Small, 82 A.D.3d 1451, 1452, 918 N.Y.S.2d 755 [2011], lv. denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011]; People v. Peterkin, 77 A.D.3d 1017, 1017–1018, 908 N.Y.S.2d 614 [2010] ). Further, to the degree that defendant asserts that counsel failed to adequately pursue potential defenses or sentencing options, this argument implicates matters outside the record—matters that are more appropriately considered in the context of a CPL article 440 motion (see People v. Planty, 85 A.D.3d at 1318, 925 N.Y.S.2d 240; People v. Davis, 84 A.D.3d 1645, 1646 n., 923 N.Y.S.2d 364 [2011], lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011] ).

Finally, defendant's valid waiver of the right to appeal both his conviction and sentence (cf. People v. Maracle, 19 N.Y.3d 925, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ) precludes any claim that the sentence imposed was harsh and excessive (see People v. Lopez, 97 A.D.3d 853, 853–854, 948 N.Y.S.2d 174 [2012], lv. denied 19 N.Y.3d 1027 [2012] ).

ORDERED that the judgment is affirmed.

EGAN JR., J.

MERCURE, J.P., SPAIN, MALONE JR. and KAVANAGH, JJ., concur.