PEOPLE v. DICKERSON (2019)

MEMORANDUM AND ORDER

In June 2016, defendant was charged by indictment with criminal sale of a controlled substance in the third degree.  Pursuant to a negotiated plea agreement, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree in satisfaction of the above charge and other pending possession charges and waived his right to appeal.  In accordance with the plea agreement, Supreme Court sentenced defendant, a second felony offender, to a prison term of three years to be followed by two years of postrelease supervision.  Defendant appeals, and we now affirm.

Initially, we reject defendant's contention that his waiver of the right to appeal was invalid.  During the plea colloquy, Supreme Court advised defendant that a waiver of appeal was a condition of the plea agreement and explained to him that he ordinarily retained the right to appeal and that the waiver was separate and distinct from the trial-related rights that he was forfeiting by pleading guilty (see People v. McDonald, 165 A.D.3d 1327, 1327, 83 N.Y.S.3d 751 [2018];  People v. Chaney, 160 A.D.3d 1281, 1282–1283, 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] ).  Defendant confirmed that he understood and then executed a written waiver in open court after consulting with counsel (see People v. Venable, 161 A.D.3d 1315, 1315, 73 N.Y.S.3d 459 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018];  People v. Smith, 157 A.D.3d 1059, 1059, 69 N.Y.S.3d 190 [2018], lv denied 31 N.Y.3d 987, 77 N.Y.S.3d 665, 102 N.E.3d 442 [2018] ).  Under these circumstances, we find that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Williams, 163 A.D.3d 1172, 1172–1173, 81 N.Y.S.3d 636 [2018], lv denied 32 N.Y.3d 1009, 86 N.Y.S.3d 768, 111 N.E.3d 1124 [2018];  People v. Savage, 158 A.D.3d 854, 855, 70 N.Y.S.3d 602 [2018] ).  Accordingly, defendant's challenge to the severity of the agreed-upon sentence imposed is precluded (see People v. Lew, 165 A.D.3d 1322, 1322, 82 N.Y.S.3d 751 [2018];  People v. Velez, 158 A.D.3d 952, 952–953, 68 N.Y.S.3d 776 [2018] ).

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. Milligan, 165 A.D.3d 1347, 1347, 85 N.Y.S.3d 616 [2018];  People v. Gorman, 165 A.D.3d 1349, 1349, 85 N.Y.S.3d 614 [2018] ), and the narrow exception to the preservation requirement is inapplicable (see People v. Evans, 156 A.D.3d 1246, 1247, 68 N.Y.S.3d 564 [2017], 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] ).  To the limited extent that defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea and survives his appeal waiver, it is similarly unpreserved (see People v. Norton, 164 A.D.3d 1502, 1503, 82 N.Y.S.3d 665 [2018], lv denied 32 N.Y.3d 1114, 91 N.Y.S.3d 365, 115 N.E.3d 637, 2018 WL 6503369 [Nov. 29, 2018];  People v. Haverly, 161 A.D.3d 1483, 1484, 74 N.Y.S.3d 774 [2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [2018] ).  In any case, defendant's claim that defense counsel failed to explore potential defenses implicates matters outside of the record and is more properly addressed in the context of a CPL article 440 motion (see People v. Retell, 164 A.D.3d 1501, 1502, 82 N.Y.S.3d 279 [2018];  People v. Burks, 163 A.D.3d 1286, 1287 n., 80 N.Y.S.3d 733 [2018], lv denied 32 N.Y.3d 1063, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018] ).

Defendant's remaining contentions have been considered and are without merit.

ORDERED that the judgment is affirmed.

Devine, J.

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