PEOPLE v. RUTIGLIANO (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered April 21, 2016, convicting defendant upon her plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

In satisfaction of a 10–count indictment and another pending charge, defendant pleaded guilty to criminal possession of a controlled substance in the second degree and waived her right to appeal.  County Court thereafter sentenced her, as a second felony offender, to 10 years in prison, to be followed by five years of postrelease supervision.  Defendant now appeals.

We affirm.  Initially, we reject defendant's claim that her waiver of the right to appeal was invalid.  County Court explained that the right to appeal was separate and distinct from the rights forfeited by a guilty plea, and the record reflects that defendant executed a written appeal waiver and acknowledged that she had discussed the waiver with counsel and understood it.  Accordingly, we find that defendant's appeal waiver was knowing, intelligent and voluntary (see People v. Baxter, 154 A.D.3d 1010, 1011, 60 N.Y.S.3d 855 [2017];  People v. Hess, 150 A.D.3d 1560, 1560, 55 N.Y.S.3d 780 [2017] ).  Defendant's valid waiver of the right to appeal precludes her challenge to the severity of her sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Weir, 155 A.D.3d 1190, 1191, 63 N.Y.S.3d 256 [2017] ).

Defendant's contention that her plea was involuntary because it was coerced survives her appeal waiver but is not preserved for our review, as there is no indication in the record that she made an appropriate postallocution motion (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];  People v. Williams, 150 A.D.3d 1549, 1550, 56 N.Y.S.3d 357 [2017] ).  Even assuming that defendant's statements made at the outset of the plea colloquy implicated the voluntariness of her plea and therefore triggered the narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), defendant thereafter consulted with counsel, and County Court conducted a satisfactory inquiry to ensure that defendant was entering her plea knowingly, intelligently and voluntarily (see People v. Easter, 122 A.D.3d 1073, 1073–1074, 995 N.Y.S.2d 852 [2014], lv denied 24 N.Y.3d 1219, 4 N.Y.S.3d 607, 28 N.E.3d 43 [2015];  People v. Goodell, 104 A.D.3d 1026, 1026, 960 N.Y.S.2d 744 [2013], lv denied 22 N.Y.3d 1138, 983 N.Y.S.2d 497, 6 N.E.3d 616 [2014] ).

As to defendant's claim of ineffective assistance of counsel, her “challenges to counsel's motion practice and discovery efforts were forfeited by [her] guilty plea” (People v. Trombley, 91 A.D.3d 1197, 1201, 937 N.Y.S.2d 665 [2012], lv denied 21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013];  accord People v. Kormos, 126 A.D.3d 1039, 1040, 4 N.Y.S.3d 390 [2015] ).  To the extent that her ineffective assistance claim impacts the voluntariness of the plea, it is unpreserved in light of the lack of an appropriate postallocution motion (see People v. Dolberry, 147 A.D.3d 1149, 1150, 46 N.Y.S.3d 437 [2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017];  People v. Islam, 134 A.D.3d 1348, 1349, 21 N.Y.S.3d 648 [2015] ).  The balance of defendant's ineffective assistance of counsel claim concerns matters outside of the record and is more appropriately addressed in a CPL article 440 motion (see People v. Doggett, 146 A.D.3d 1172, 1173, 46 N.Y.S.3d 285 [2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017];  People v. Goldman, 139 A.D.3d 1111, 1112, 30 N.Y.S.3d 757 [2016], lv denied 28 N.Y.3d 970, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016] ).

ORDERED that the judgment is affirmed.

Clark, J.

McCarthy, J.P., Lynch, Devine and Pritzker, JJ., concur.