PEOPLE v. QUELL (2018)

MEMORANDUM AND ORDER

In November 2015, defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of grand larceny in the fourth degree.  The charge arose out of allegations that, in the early morning hours of April 30, 2015, defendant approached a woman inside of a convenience store and grabbed and stole $40 from her right hand.  Pursuant to a plea agreement, defendant pleaded guilty to grand larceny in the fourth degree and executed a written waiver of appeal in open court.  In accordance with the terms of the plea agreement, County Court thereafter sentenced defendant, as a second felony offender, to a prison term of 11/212 to 3 years.  Defendant appeals.

Defendant's sole contentions on appeal are that his combined oral and written waiver of appeal is invalid because County Court failed to advise him of the separate and distinct nature of his right to appeal and that his guilty plea was not knowing, voluntary and intelligent because it was coerced.  As an initial matter, whether defendant's combined oral and written waiver of appeal was knowing, voluntary and intelligent is of no consequence because defendant's challenge to the voluntariness of his guilty plea survives a valid waiver of the right to appeal (see People v. Tucker, 164 A.D.3d 948, 950, 81 N.Y.S.3d 677 [2018];  People v. Howe, 150 A.D.3d 1321, 1322–1323, 54 N.Y.S.3d 190 [2017] ).  However, although defendant's challenge to the voluntariness of his plea survives a valid waiver of the right to appeal, his claim has not been preserved for our review as the record does not reflect that he made an appropriate postallocution motion (see CPL 220.60[3];  People v. Guidry, 158 A.D.3d 901, 902, 71 N.Y.S.3d 174 [2018];  People v. Williams, 155 A.D.3d 1253, 1254, 64 N.Y.S.3d 742 [2017], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111 103 N.E.3d 1258 [2018] ).  Moreover, defendant's reliance upon his unsworn statements contained within a postplea letter sent to County Court prior to sentencing, which contradicted his sworn plea allocution, is unavailing, as said letter neither properly preserved this issue for appeal nor constituted a motion to withdraw his guilty plea (see People v. Willard, 159 A.D.3d 1228, 1229, 73 N.Y.S.3d 281 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018];  People v. Rayburn, 150 A.D.3d 1553, 1554–1555 & n, 55 N.Y.S.3d 512 [2017] ).  Moreover, the narrow exception to the preservation rule is inapplicable as defendant did not make any statements during the plea colloquy or sentencing proceeding that cast doubt upon his guilt, negated an element of the crime or called into question the voluntariness of his plea (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Tucker, 164 A.D.3d at 950, 81 N.Y.S.3d 677;  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] ).

ORDERED that the judgment is affirmed.

Egan Jr., J.

Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur.