PEOPLE v. MILLIGAN II (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered September 1, 2016, convicting defendant upon his plea of guilty of the crimes of attempted criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the fourth degree.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with attempted criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the fourth degree.  He pleaded guilty to these crimes and waived his right to appeal.  In accordance with the terms of the plea agreement, defendant was sentenced as a second felony offender and concurrent sentences were imposed consisting of two years in prison followed by five years of postrelease supervision on his conviction of attempted criminal possession of a weapon in the third degree, and two years in prison followed by 1 1/212 years of postrelease supervision on his conviction of criminal possession of a controlled substance in the fourth degree.  He now appeals.

Initially, although not precluded by his waiver of the right to appeal, defendant's challenge to the voluntariness of his guilty plea has not been preserved for our review as the record does not disclose that he made an appropriate postallocution motion (see People v. Evans, 156 A.D.3d 1246, 1246–1247, 68 N.Y.S.3d 564 [2017];  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] ).  Moreover, the narrow exception to the preservation requirement is inapplicable as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt (see People v. Evans, 156 A.D.3d at 1247, 68 N.Y.S.3d 564;  People v. Tetreault, 152 A.D.3d 1081, 1082, 60 N.Y.S.3d 540 [2017], lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ).  The absence of a postallocution motion also renders unpreserved defendant's claim of ineffective assistance of counsel insofar it impacts the voluntariness of his guilty plea (see People v. Dolberry, 147 A.D.3d at 1150, 46 N.Y.S.3d 437;  People v. Taylor, 144 A.D.3d 1317, 1318, 41 N.Y.S.3d 587 [2016], lvs denied 28 N.Y.3d 1144, 1151, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ).  To the extent that defendant complains that his counsel did not make appropriate motions or conduct necessary discovery, these claims are foreclosed by his guilty plea (see 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];  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] ).

ORDERED that the judgment is affirmed.

Rumsey, J.

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