PEOPLE v. NORTON (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered November 19, 2015, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.

Defendant was charged by felony complaint with sexual abuse in the first degree and endangering the welfare of a child following allegations that he subjected a four-year-old relative to sexual contact.  Pursuant to the terms of a plea agreement, defendant waived indictment and agreed to be prosecuted by a superior court information charging him with one count of sexual abuse in the first degree, pleaded guilty to this crime in satisfaction of the charges and waived his right to appeal.  County Court thereafter imposed the agreed-upon prison term of five years and, in its discretion, directed a period of 10 years of postrelease supervision.  Defendant appeals.

We affirm.  Initially, we find that defendant's unchallenged oral and written waiver of appeal, entered in connection with his guilty plea, was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015];  People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [2017] ).  Although defendant's challenge to the voluntariness of his plea survives his valid appeal waiver (see People v. Seaberg, 74 N.Y.2d 1, 9–10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), this issue is unpreserved for our review given that the record does not reflect that he made an appropriate postallocution motion to vacate the plea despite ample opportunity to do so (see CPL 220.60[3];  People v. Leach, 26 N.Y.3d 1154, 1154, 28 N.Y.S.3d 355, 48 N.E.3d 497 [2016];  People v. Peque, 22 N.Y.3d 168, 182–183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied ––– U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ).  Moreover, the narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Williams, 27 N.Y.3d 212, 219–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016];  People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Sisto, 161 A.D.3d 1483, 1483, 74 N.Y.S.3d 773 [2018] ).

Defendant's assertion that he was deprived of the effective assistance of counsel, which survives his valid appeal waiver to the limited extent that it impacts upon the voluntariness of his plea, is unpreserved for the same reason (see People v. Jackson, 159 A.D.3d 1276, 1277, 73 N.Y.S.3d 676 [2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505, 2018 WL 3811359 [July 19, 2018] ).  Were the issue properly before us, we would find that it lacks merit, as defendant received a very favorable plea bargain and nothing in this record calls into question the apparent effectiveness of counsel (see People v. London, 153 A.D.3d 1032, 1033, 60 N.Y.S.3d 581 [2017];  People v. Dubois, 150 A.D.3d 1562, 1564, 55 N.Y.S.3d 513 [2017] ).  Defendant's claims that counsel failed to investigate the charges or to adequately inform him of and pursue available defenses, discovery and motion practice are largely premised upon matters that are outside of the record on appeal and, as such, are more appropriately considered in a motion pursuant to CPL article 440 (see People v. Duggins, 161 A.D.3d 1445, 1446, 77 N.Y.S.3d 765 [2018];  People v. Rutigliano, 159 A.D.3d 1280, 1281, 73 N.Y.S.3d 674 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ).

ORDERED that the judgment is affirmed.

Clark, J.

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