PEOPLE v. GORMAN (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered March 21, 2016, convicting defendant upon his plea of guilty of the crimes of vehicular manslaughter in the first degree and vehicular assault in the first degree.

On October 31, 2015, defendant was driving while intoxicated and struck a group of college students, killing one and seriously injuring two others.  Pursuant to a plea agreement, defendant waived indictment, pleaded guilty to a superior court information charging him with vehicular manslaughter in the first degree and vehicular assault in the first degree and waived his right to appeal.  County Court sentenced defendant within the range contemplated by the plea agreement, namely, an aggregate prison term of 5 to 15 years.  Defendant appeals.

Initially, defendant's challenges to the sufficiency of the plea allocution and to the sentence as harsh and excessive are precluded by his unchallenged appeal waiver (see People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015];  People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Chaney, 160 A.D.3d 1281, 1283, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018];  People v. Welden, 156 A.D.3d 1241, 1241, 65 N.Y.S.3d 814 [2017] ).  The contention in defendant's pro se supplemental brief that unspecified “pertinent information might have been omitted” from the presentence report, even assuming that it survives his appeal waiver, was not raised prior to sentencing and is not preserved for our review (see People v. Vanbuskirk, 126 A.D.3d 1239, 1240, 3 N.Y.S.3d 648 [2015] ).  Defendant's challenge to the voluntariness of his plea is not precluded by his appeal waiver, but it is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion despite having had ample opportunity to do so prior to sentencing (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  People v. Tyrell, 22 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013];  People v. Duvall, 157 A.D.3d 1060, 1061, 66 N.Y.S.3d 754 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ).  Further, defendant made no statements during the plea allocution that triggered the narrow exception to the preservation rule (see People v. Williams, 27 N.Y.3d 212, 220, 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] ).  Were we to address this claim despite the lack of preservation, we would find that the “plea was knowingly, voluntarily and intelligently entered” (People v. Welden, 156 A.D.3d at 1241, 65 N.Y.S.3d 814).

To the extent that defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea, it survives his appeal waiver but was likewise not preserved for our review (see People v. Williams, 163 A.D.3d 1172, 1173–1174, 81 N.Y.S.3d 636 [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] ).  Moreover, his challenge to counsel's motion practice and discovery efforts was forfeited by his guilty plea (see People v. Ward, 161 A.D.3d 1488, 1489, 74 N.Y.S.3d 775 [2018], lv denied 32 N.Y.3d 942, 84 N.Y.S.3d 869, 109 N.E.3d 1169 [Aug. 21, 2018];  People v. Rutigliano, 159 A.D.3d at 1281, 73 N.Y.S.3d 674).  The balance of defendant's arguments involve matters outside of the record on appeal that are more properly raised in a CPL article 440 motion (see People v. Williams, 163 A.D.3d at 1173, 81 N.Y.S.3d 636;  see e.g. People v. Pabon, 157 A.D.3d 1057, 1058, 69 N.Y.S.3d 192 [2018], lv denied 31 N.Y.3d 986, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ).  Defendant's remaining claims have been considered and found to lack merit.

ORDERED that the judgment is affirmed.

Devine, J.

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