PEOPLE v. RETELL (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered April 29, 2016, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Pursuant to a negotiated plea agreement, defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of attempted criminal sale of a controlled substance in the third degree.  Defendant subsequently waived his right to appeal and pleaded guilty to the charged crime – in full satisfaction of all pending and potentially related charges – with the understanding that he would be sentenced as a second felony offender to a prison term of four years followed by a period of postrelease supervision ranging from 1 1/212 to 3 years.  Consistent with the terms of the plea agreement, County Court sentenced defendant to four years in prison followed by three years of postrelease supervision and, at defense counsel's request, recommended defendant for shock incarceration.  Defendant now appeals.

We affirm.  Although defendant's challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal, this claim is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Conley, 161 A.D.3d 1486, 1486–1487, 77 N.Y.S.3d 772 [2018];  People v. Busch–Scardino, 158 A.D.3d 988, 988, 71 N.Y.S.3d 694 [2018];  People v. Pittman, 157 A.D.3d 1130, 1131, 69 N.Y.S.3d 750 [2018], lv denied 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ).  Defendant's ineffective assistance of counsel claim – to the extent that it impacts upon the voluntariness of his plea – is similarly unpreserved (see People v. Muller, 159 A.D.3d 1232, 1232, 73 N.Y.S.3d 279 [2018];  People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [2016] ), and any assertion that defense counsel failed to pursue certain motions or explore potential defenses implicates matters outside of the record that are best addressed in the context of a CPL article 440 motion (see e.g. People v. Cantey, 161 A.D.3d 1449, 1450–1451, 77 N.Y.S.3d 761 [2018];  People v. Pooler, 158 A.D.3d 935, 936, 70 N.Y.S.3d 622 [2018] ).  Contrary to defendant's assertion, the narrow exception to the preservation requirement was not triggered, as he did not make any statements during the plea colloquy that cast doubt upon his guilt, negated an element of the charged crime or otherwise called into question the voluntariness of his plea (see People v. Joubert, 155 A.D.3d 1255, 1256, 64 N.Y.S.3d 745 [2017], lv denied 30 N.Y.3d 1116, 77 N.Y.S.3d 341, 101 N.E.3d 982 [2018];  People v. Davis, 150 A.D.3d 1396, 1397, 54 N.Y.S.3d 723 [2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017];  People v. Forest, 141 A.D.3d 967, 968–969, 36 N.Y.S.3d 296 [2016], lv denied 28 N.Y.3d 1145, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ).

ORDERED that the judgment is affirmed.

Aarons, J.

Garry, P.J., Egan Jr., Devine and Clark, JJ., concur.