PEOPLE v. LASHER (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered March 28, 2017, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Defendant pleaded guilty to burglary in the second degree in full satisfaction of various charges contained in two indictments and waived the right to appeal.  County Court thereafter sentenced him, as a second felony offender, to the agreed-upon prison term of eight years, to be followed by five years of postrelease supervision.  Defendant appeals.

Initially, to the extent that defendant argues that the People failed to provide proper notice of the grand jury proceedings, such claim was forfeited by his guilty plea (see People v. Wheeler, 176 A.D.2d 1133, 1134, 575 N.Y.S.2d 951 [1991], lv denied 79 N.Y.2d 924, 582 N.Y.S.2d 84, 590 N.E.2d 1212 [1992];  People v. Kehn, 132 A.D.2d 778, 779, 517 N.Y.S.2d 797 [1987], lv denied 70 N.Y.2d 800, 522 N.Y.S.2d 118, 516 N.E.2d 1231 [1987] ).  Defendant's ineffective assistance of counsel claim, based upon his counsel's failure to object to a lack of a preliminary hearing on the charges leading to the first indictment, was also forfeited by his guilty plea, as it does not directly involve the plea bargaining process (see People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669 [1982];  People v. Terenzi, 57 A.D.3d 1228, 1229, 870 N.Y.S.2d 534 [2008], lv denied 12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ).  Defendant also contends that he was deprived of the effective assistance of counsel by counsel's failure to secure his testimony before the grand jury.  “[F]ailure of defense counsel to facilitate [a] defendant's testimony before the grand jury does not, per se, amount to the denial of effective assistance of counsel” (People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130 [2008];  accord People v. Ronk, 159 A.D.3d 1129, 1130, 72 N.Y.S.3d 228 [2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 108, 103 N.E.3d 1255 [2018];  People v. Hogan, 26 N.Y.3d 779, 787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] ).  Moreover, defendant has not demonstrated “ ‘that he was prejudiced by the failure of his attorney to effectuate his intentions or appearance before the grand jury and there is no claim that had he testified in the grand jury, the outcome would have been different’ ” (People v. Lasher, 74 A.D.3d 1474, 1476, 902 N.Y.S.2d 262 [2010] [brackets and ellipsis omitted], lv denied 15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017 [2010], quoting see People v. Simmons, 10 N.Y.3d at 949, 862 N.Y.S.2d 852, 893 N.E.2d 130;  see People v. Ronk, 159 A.D.3d at 1130, 72 N.Y.S.3d 228).

Defendant's contention that his plea was not knowing, intelligent and voluntary is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Conley, 161 A.D.3d 1486, 1486–1487, 77 N.Y.S.3d 772 [2018];  People v. Busch–Scardino, 158 A.D.3d 988, 988, 71 N.Y.S.3d 694 [2018] ).  The narrow exception to the preservation rule is not triggered here as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or called into question the voluntariness of the plea (see People v. Suits, 158 A.D.3d 949, 950–951, 71 N.Y.S.3d 664 [2018];  People v. Mathayo, 155 A.D.3d 1090, 1091, 62 N.Y.S.3d 825 [2017], lv denied 30 N.Y.3d 1107, 77 N.Y.S.3d 6, 101 N.E.3d 392 [2018] ).  Finally, defendant's claim that his sentence is harsh and excessive is precluded by his unchallenged appeal waiver (see People v. Fairweather, 147 A.D.3d 1153, 1154, 46 N.Y.S.3d 439 [2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017];  People v. Smalls, 128 A.D.3d 1281, 1282, 8 N.Y.S.3d 614 [2015], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016] ).

ORDERED that the judgment is affirmed.

Garry, P.J.

Lynch, Devine, Aarons and Pritzker, JJ., concur.