PEOPLE v. BURKS (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered December 9, 2014, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with attempted criminal sale of a controlled substance in the third degree.  He pleaded guilty to this crime and waived his right to appeal.  In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to 31/212 years in prison to be followed by 11/212 years of postrelease supervision.  Defendant now appeals.

Initially, defendant's challenges to the voluntariness and factual sufficiency of his guilty plea have not been preserved for our review, as the record does not disclose that he made an appropriate postallocution motion (see People v. Muller, 159 A.D.3d 1232, 1233, 73 N.Y.S.3d 279 [2018];  People v. Bailey, 158 A.D.3d 948, 948, 71 N.Y.S.3d 667 [2018] ).  For the same reason, his claim of ineffective assistance of counsel – to the extent that it impacts the voluntariness of his plea – is also unpreserved (see People v. Gause, 159 A.D.3d 1277, 1277, 70 N.Y.S.3d 871 [2018];  People v. Muller, 159 A.D.3d at 1233, 73 N.Y.S.3d 279).¹  With regard to these contentions, we find that the narrow exception to the preservation rule is inapplicable, as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or called into question the voluntariness of his guilty plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Muller, 159 A.D.3d at 1233, 73 N.Y.S.3d 279).  Defendant's further assertion that he was improperly arraigned without counsel present, in violation of CPL 180.10(3), is also unpreserved given his failure to raise it before County Court (see CPL 470.05[2];  People v. Green, 48 A.D.3d 1056, 1057, 849 N.Y.S.2d 826 [2008], lv denied 10 N.Y.3d 934, 862 N.Y.S.2d 341, 892 N.E.2d 407 [2008];  see also People v. Luckerson, 135 A.D.3d 1186, 1187, 25 N.Y.S.3d 382 [2016] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The balance of defendant's claims with regard to the alleged ineffectiveness of counsel concern matters outside the record and are more properly addressed in a CPL article 440 motion (see People v. Rutigliano, 159 A.D.3d 1280, 1281, 73 N.Y.S.3d 674 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764, 2018 WL 3392161 [June 20, 2018] ).

Mulvey, J.

Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur.