PEOPLE v. BLANCHARD (2020)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered August 19, 2015, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree, and (2) from an order of said court (Sober, J.), entered February 27, 2019, which denied defendant's motion to settle the record.

In a September 2014 indictment, defendant was charged with robbery in the first degree, robbery in the second degree, criminal possession of a weapon in the third degree, menacing in the second degree and harassment in the second degree.  In full satisfaction thereof, defendant pleaded guilty to a reduced charge of attempted robbery in the first degree and waived his right to appeal, both orally and in writing.  Consistent with the terms of the plea agreement, County Court (Ceresia, J.) imposed upon defendant, as a second felony offender, a prison sentence of eight years, to be followed by five years of postrelease supervision.  Defendant's subsequent motion to settle the record was denied by County Court (Sober, J.) in a February 2019 decision and order, prompting these appeals.

Initially, with regard to County Court's denial of defendant's motion to settle the record, the People did not oppose many of defendant's proposed amendments concerning an unrelated incident (see People v. La Motte, 276 A.D.2d 931, 932, 714 N.Y.S.2d 562 [2000] ).  Defendant, however, has failed to demonstrate that the requested videotape ever existed and that the remaining proposed amendments were ever considered by, or part of the record before, County Court (Ceresia, J.).  Under these circumstances, we find no abuse of discretion in the denial of defendant's motion to settle the record (see 22 NYCRR former 800.7;  People v. La Motte, 276 A.D.2d at 932–933, 714 N.Y.S.2d 562;  People v. Hummer, 217 A.D.2d 713, 714, 629 N.Y.S.2d 119 [1995], lv denied 86 N.Y.2d 843, 634 N.Y.S.2d 452, 658 N.E.2d 230 [1995];  see also 22 NYCRR 850.7[b][2][iii];  1250.7).

Contrary to his contention, defendant validly waived his right to appeal.  The record reflects that defendant was advised at the outset of the plea proceeding that the waiver of his right to appeal was a condition of the plea agreement, and defendant indicated his understanding of this condition and that he had no questions (see People v. Cannelli, 173 A.D.3d 1567, 1567–1568, 101 N.Y.S.3d 668 [2019];  People v. Vanalst, 171 A.D.3d 1349, 1350, 96 N.Y.S.3d 767 [2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 659, 130 N.E.3d 1269 [2019];  People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018] ).  During the plea colloquy, County Court distinguished the right to appeal as separate and distinct from the other trial-related rights automatically forfeited by a guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Danielson, 170 A.D.3d 1430, 1431, 96 N.Y.S.3d 754 [2019], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 486, 205 L.Ed.2d 280 [2019];  People v. Tucker, 164 A.D.3d 948, 949, 81 N.Y.S.3d 677 [2018] ).  In addition, the written waiver executed by defendant in open court after conferring with counsel made clear that the waiver of the right to appeal was separate from those rights automatically forfeited upon a plea of guilty and that he was giving up his right to appeal from his conviction and sentence (see People v. Crawford, 181 A.D.3d 1057, 1058, 119 N.Y.S.3d 633 [2020];  People v. Boyette, 175 A.D.3d 751, 752, 103 N.Y.S.3d 870 [2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 648, 137 N.E.3d 18 [2019] ).  Although the written waiver contained some overbroad language, the record reflects that the counseled defendant was aware of the fact that “not all appellate rights can be waived, and we are satisfied that ‘defendant understood the distinction that some appellate rights survived’ ” (People v. Brunson, 185 A.D.3d 1300, 1300 n, 128 N.Y.S.3d 338 [2020], quoting People v. Thomas, 34 N.Y.3d 545, 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ).  Accordingly, we find that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015];  People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Cherry, 166 A.D.3d at 1221, 86 N.Y.S.3d 355).

Given the valid appeal waiver, defendant's claim that he was denied the effective assistance of counsel is precluded except insofar as the alleged ineffectiveness could be construed to have impacted upon the voluntariness of his plea (see People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019];  People v. Jeske, 55 A.D.3d 1057, 1058, 865 N.Y.S.2d 750 [2008], lv denied 11 N.Y.3d 898, 873 N.Y.S.2d 274, 901 N.E.2d 768 [2008] ).  To that extent, however, the absence of an appropriate post-allocution motion renders the matter unpreserved (see People v. Johnson, 170 A.D.3d 1274, 1275, 95 N.Y.S.3d 467 [2019];  People v. Dickerson, 168 A.D.3d 1194, 1194–1195, 90 N.Y.S.3d 702 [2019];  People v. Muller, 166 A.D.3d 1240, 1241, 88 N.Y.S.3d 279 [2018] ).  To the extent that defendant alleges that counsel failed to adequately explain the terms of the plea agreement with him or properly review all available evidence, such claims implicate matters outside of the record and, therefore, are more properly the subject of a CPL article 440 motion (see People v. Snare, 174 A.D.3d 1222, 1223, 102 N.Y.S.3d 902 [2019], lv denied 34 N.Y.3d 984, 113 N.Y.S.3d 640, 137 N.E.3d 10 [2019];  People v. Muller, 159 A.D.3d 1232, 1233, 73 N.Y.S.3d 279 [2018];  People v. Brown, 115 A.D.3d 1115, 1116, 982 N.Y.S.2d 205 [2014], lv denied 24 N.Y.3d 959, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ).

ORDERED that the judgment and order are affirmed.

Aarons, J.

Egan Jr., J.P., Mulvey and Pritzker, JJ., concur.