PEOPLE v. HORTON (2018)

MEMORANDUM AND ORDER

Defendant, a prison inmate, was indicted and charged with one count of criminal possession of a forged instrument in the second degree.  The charge stemmed from defendant's possession of a forged court order bearing the false signature of a judge and defendant's subsequent filing of that order with the St. Lawrence County Clerk's office.  Pursuant to a plea agreement, defendant pleaded guilty to criminal possession of a forged instrument in the second degree with the understanding that, among other things, the People would not offer a sentencing recommendation or pursue persistent felony offender status.  Consistent with the terms of the agreement, County Court sentenced defendant, as a second felony offender, to a prison term of 21/212 to 5 years, to run consecutively to defendant's current undischarged term of imprisonment.  Defendant appeals.

We affirm.  Initially, defendant's challenge to the voluntariness of his plea has not been preserved for our review.  The record before us does not reflect that he made an appropriate postallocution motion (see CPL 220.60[3];  People v. Guidry, 158 A.D.3d 901, 902, 71 N.Y.S.3d 174 [2018];  People v. Williams, 155 A.D.3d 1253, 1254, 64 N.Y.S.3d 742 [2017], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ), and the narrow exception to the preservation rule is inapplicable as defendant did not make any statements during the plea colloquy or sentencing proceeding that cast doubt upon his guilt, negated an element of the crime or called into question the voluntariness of his plea (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Tucker, 164 A.D.3d 948, 950, 81 N.Y.S.3d 677 [2018] ).  Moreover, defendant's pro se submission prior to sentencing did not preserve his challenge to his guilty plea because he was represented by counsel and was not entitled to hybrid representation (see People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882 [2000] ).  As such, County Court did not abuse its discretion in refusing to consider defendant's pro se motion to withdraw his plea prior to sentencing (see id. at 501–502, 719 N.Y.S.2d 208, 741 N.E.2d 882;  People v. Fowler, 136 A.D.3d 1395, 1395, 24 N.Y.S.3d 479 [2016], lv denied 27 N.Y.3d 996, 38 N.Y.S.3d 106, 59 N.E.3d 1218 [2016];  People v. Martin, 125 A.D.3d 1054, 1054–1055, 3 N.Y.S.3d 187 [2015], lv denied 26 N.Y.3d 932, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015];  cf. People v. Rayburn, 150 A.D.3d 1553, 1554–1555 & 1555 n., 55 N.Y.S.3d 512 [2017] ), particularly where, as here, defendant “did not request an adjournment of sentencing or the removal of counsel” (People v. Martin, 125 A.D.3d at 1055, 3 N.Y.S.3d 187).

Even if defendant's statutory speedy trial claim was properly before us (see CPL 210.20[1][g];  [2];  People v. Devino, 110 A.D.3d 1146, 1147, 973 N.Y.S.2d 372 [2013] ), this claim was waived when he entered his guilty plea (see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982];  People v. Simpson, 146 A.D.3d 1175, 1176, 47 N.Y.S.3d 477 [2017], lvs denied 30 N.Y.3d 980, 983, 67 N.Y.S.3d 582, 585, 89 N.E.3d 1262, 1265 [2017];  People v. Toledo, 144 A.D.3d 1332, 1334 n. 2, 40 N.Y.S.3d 680 [2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017];  People v. Slingerland, 101 A.D.3d 1265, 1267, 955 N.Y.S.2d 690 [2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ).  Defendant's related claims that his counsel was ineffective for failing to move to suppress certain evidence and to dismiss the indictment on speedy trial grounds was not preserved given the absence of an appropriate postallocution motion in the record before us (see People v. Simpson, 146 A.D.3d at 1176, 47 N.Y.S.3d 477;  People v. Toledo, 144 A.D.3d at 1333, 40 N.Y.S.3d 680).  Finally, to the extent that defendant's contentions regarding the alleged ineffectiveness of counsel concern matters that are outside the record on appeal, they are more appropriately addressed in a motion to vacate pursuant to CPL article 440 (see People v. Toledo, 144 A.D.3d at 1333 n. 1, 40 N.Y.S.3d 680;  People v. Case, 139 A.D.3d 1239, 1240–1241, 31 N.Y.S.3d 663 [2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 [2016] ).  Defendant's remaining claims have been considered and found to be without merit.

ORDERED that the judgment is affirmed.

McCarthy, J.P.

Egan Jr., Lynch, Mulvey and Rumsey, JJ., concur.