PEOPLE v. MULLER (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered March 7, 2016, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In April 2015, defendant pleaded guilty—in full satisfaction of a multicount indictment procured by the Attorney General—to one count of criminal sale of a controlled substance in the third degree and was released on bail pending sentencing.  While at liberty, defendant sold cocaine to another individual and, in August 2015, was indicted by an Albany County grand jury with criminal sale of a controlled substance in the third degree.  Plea negotiations ensued and, in November 2015, defendant, who by then was facing additional charges, agreed to plead guilty to the August 2015 indictment in exchange for a prison term of five years—to be served consecutively to the sentence to be imposed upon his earlier drug conviction—followed by two years of postrelease supervision.  The plea agreement also required defendant to waive his right to appeal.  Defendant thereafter pleaded guilty to one count of criminal sale of a controlled substance in the third degree and received the promised sentence.¹  This appeal ensued.

We affirm.  Defendant's challenge to the voluntariness and/or factual sufficiency of his plea is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Leflore, 154 A.D.3d 1164, 1165, 64 N.Y.S.3d 148 [2017], lv denied 30 N.Y.3d 1106, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2018 WL 947584 [Jan. 11, 2018];  People v. Woods, 147 A.D.3d 1156, 1156–1157, 46 N.Y.S.3d 441 [2017], lv denied 29 N.Y.3d 1089, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017];  People v. Hankerson, 147 A.D.3d 1153, 1153, 46 N.Y.S.3d 438 [2017], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412[2017] ), as is his claim of coercion (see People v. Lobaton, 140 A.D.3d 1534, 1535, 33 N.Y.S.3d 780 [2016], lv denied 28 N.Y.3d 972, 43 N.Y.S.3d 259, 66 N.E.3d 5 [2016];  People v. Hudson, 130 A.D.3d 1320, 1320, 14 N.Y.S.3d 231 [2015] ).  Defendant's ineffective assistance of counsel claim—insofar as it implicates the voluntariness of his plea—is similarly unpreserved for our review (see People v. Franklin, 146 A.D.3d 1082, 1084, 45 N.Y.S.3d 635 [2017], lvs denied 29 N.Y.3d 946, 948, 54 N.Y.S.3d 377, 379, 76 N.E.3d 1080, 1082 [2017];  People v. Guyette, 121 A.D.3d 1430, 1431–1432, 995 N.Y.S.2d 395 [2014], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ).  Contrary to defendant's assertion, he “did not make any statements during the course of the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea” (People v. White, 156 A.D.3d 1249, 1250, 65 N.Y.S.3d 812 [2017] );  hence, the narrow exception to the preservation requirement was not triggered here (see People v. Jones, 155 A.D.3d 1103, 1106, 64 N.Y.S.3d 358 [2017], lv denied 30 N.Y.3d 1106, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2018 WL 948452 [Jan. 24, 2018] ).  To the extent that defendant argues that he was denied meaningful representation because counsel failed to adequately investigate potential defenses, pursue alternative sentencing avenues or sufficiently explain defendant's various legal options, these claims implicate matters outside of the record and, therefore, are more properly the subject of a CPL article 440 motion (see People v. Pringle, 155 A.D.3d 1085, 1086, 62 N.Y.S.3d 824 [2017];  People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [2016];  People v. Ramey, 123 A.D.3d 1290, 1291, 996 N.Y.S.2d 793 [2014], lv denied 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 [2015] ).  Finally, defendant's various challenges to the sentence imposed have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   In the context of his plea to the indictment handed up by the Attorney General, defendant also was sentenced to five years in prison—resulting in an aggregate prison term of 10 years.

Egan Jr., J.P.

Clark, Mulvey, Aarons and Rumsey, JJ., concur.