PEOPLE v. FREEMAN (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (McDonough, J.), rendered August 12, 2016 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In full satisfaction of a two-count indictment, defendant agreed to plead guilty to one count of criminal possession of a controlled substance in the third degree.  The plea agreement required defendant to waive his right to appeal, and defendant's sentencing exposure – the parameters of which were fully explained to defendant – was contingent upon whether he was determined to be a predicate felon.  Following a detailed plea colloquy, defendant pleaded guilty as contemplated and was released on his own recognizance pending sentencing.  Supreme Court subsequently sentenced defendant as a second felony offender to a prison term of four years followed by three years of postrelease supervision.  This appeal ensued.

Contrary to defendant's assertion, we find that his waiver of the right to appeal was valid.  Supreme Court explained the separate and distinct nature of the waiver, distinguished defendant's right to appeal from the trial-related rights that he was forfeiting by pleading guilty and expressly advised defendant that the waiver encompassed any challenge to the sentence imposed as harsh or excessive (see People v. Mateo, 166 A.D.3d 1246, 1247, 87 N.Y.S.3d 736 [2018];  People v. Nieves, 163 A.D.3d 1359, 1359, 77 N.Y.S.3d 908 [2018], lv denied 32 N.Y.3d 1006, 86 N.Y.S.3d 765, 111 N.E.3d 1121 [2018];  People v. Williams, 163 A.D.3d 1172, 1172, 81 N.Y.S.3d 636 [2018], lv denied 32 N.Y.3d 1009, 86 N.Y.S.3d 768, 111 N.E.3d 1124 [2018] ).  Additionally, defendant executed a written waiver of appeal in open court, advised the court that he had read the waiver and confirmed his understanding thereof (see People v. Tucker, 161 A.D.3d 1481, 1482, 78 N.Y.S.3d 450 [2018], lv denied 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018];  People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [2017] ).  Under these circumstances, we are satisfied that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Tucker, 161 A.D.3d at 1482, 78 N.Y.S.3d 450;  People v. Brothers, 155 A.D.3d 1257, 1258, 63 N.Y.S.3d 907 [2017] ).  Given the valid appeal waiver, defendant's challenge to the perceived severity of his sentence is precluded (see People v. Nieves, 163 A.D.3d at 1360, 77 N.Y.S.3d 908;  People v. Sharpe, 159 A.D.3d 1192, 1193, 72 N.Y.S.3d 648 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ).

As for defendant's remaining arguments, although his challenge to the voluntariness of his plea survives the valid appeal waiver, this argument is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Muller, 166 A.D.3d 1240, 1241, 88 N.Y.S.3d 279 [2018];  People v. Kindred, 166 A.D.3d 1229, 1230, 86 N.Y.S.3d 350 [2018];  People v. Williams, 163 A.D.3d 1172, 1173, 81 N.Y.S.3d 636 [2018], lv denied 32 N.Y.3d 1009, 86 N.Y.S.3d 768, 111 N.E.3d 1124 [2018] ).  Defendant's related ineffective assistance of counsel claim – to the extent that it impacts upon the voluntariness of his plea – also survives but is similarly unpreserved (see People v. Letohic, 166 A.D.3d 1223, 1223–1224, 85 N.Y.S.3d 799 [2018];  People v. Monforte, 166 A.D.3d 1222, 1223, 85 N.Y.S.3d 800 [2018];  People v. Jawan, 165 A.D.3d 1350, 1351, 82 N.Y.S.3d 905 [2018] ).  Further, the record reflects that defendant did not make any statements during the course of his plea colloquy that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea and, therefore, the narrow exception to the preservation requirement was not triggered (see People v. Horton, 166 A.D.3d 1226, 1227, 86 N.Y.S.3d 352 [2018];  People v. Cherry, 166 A.D.3d 1220, 1222, 86 N.Y.S.3d 355 [2018];  People v. Buck, 136 A.D.3d 1117, 1118, 25 N.Y.S.3d 402 [2016] ).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Clark, J.

Egan Jr., J.P., Mulvey, Devine and Rumsey, JJ., concur.