PEOPLE v. GOLDEN (2019)

MEMORANDUM AND ORDER

In October 2016, defendant was indicted for criminal possession of marihuana in the second degree.  As a part of a plea agreement and in satisfaction of the indictment, defendant pleaded guilty to the reduced charge of attempted criminal possession of marihuana in the second degree and waived his right to appeal, orally and in writing.  Under the terms of the plea agreement, defendant was to be sentenced to four months of weekends in jail, to be followed by five years of postrelease supervision.  At the plea colloquy, County Court admonished defendant that it would not be bound by the agreed-upon sentencing commitment if defendant failed to appear or engaged in additional criminal conduct between the time of his plea and sentencing.  Before sentencing, defendant was arrested for possession of marihuana.  County Court thereafter imposed an enhanced sentence of six months in jail to be followed by five years of postrelease supervision.  Defendant appeals.

Defendant's sole contention on appeal is that, because defense counsel failed to adequately communicate with defendant between the time of his guilty plea and sentencing, he was denied the effective assistance of counsel, which contributed to the enhanced sentence that he received.  As this claim relates to sentencing and does not implicate the voluntariness of his plea, the claim is precluded by the unchallenged waiver of appeal (see People v. Bouck, 153 A.D.3d 1522, 1523–1524, 61 N.Y.S.3d 388 [2017], lv denied 30 N.Y.3d 1017, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017];  People v. White, 145 A.D.3d 1324, 1325, 44 N.Y.S.3d 247 [2016];  People v. Howard, 1 A.D.3d 718, 719, 766 N.Y.S.2d 641 [2003] ).¹  Further, to the extent that defendant's claim amounts to a challenge to the enhanced sentence as harsh and excessive, it is also precluded by the unchallenged appeal waiver, as County Court advised defendant of the specific conditions that he had to abide by and the consequences of violating those plea conditions (see People v. Adams, 153 A.D.3d 1449, 1451, 61 N.Y.S.3d 703 [2017];  People v. Bateman, 151 A.D.3d 1482, 1483–1484, 59 N.Y.S.3d 159 [2017], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 659, 102 N.E.3d 436 [2018] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   As the alleged ineffective assistance occurred between the time of his guilty plea and sentencing, it therefore could not have impacted the voluntariness of his guilty plea, a claim that would ordinarily survive a valid appeal waiver (see e.g. People v. Edwards, 160 A.D.3d 1280, 1281, 75 N.Y.S.3d 663 [2018], lv denied 31 N.Y.3d 1147, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018];  People v. Gardiner, 159 A.D.3d 1233, 1234, 73 N.Y.S.3d 643 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ).  Even if we were to liberally construe defendant's ineffective assistance of counsel claim as one that somehow implicates the voluntariness of his guilty plea, we would find that it is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Robinson, 155 A.D.3d 1252, 1253, 64 N.Y.S.3d 740 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018];  People v. Perkins, 140 A.D.3d 1401, 1402–1403, 33 N.Y.S.3d 584 [2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016] ).

Devine, J.

Egan Jr., J.P., Aarons and Rumsey, JJ., concur.