PEOPLE v. GREENE (2019)

MEMORANDUM AND ORDER

In January 2017, defendant was charged in a four-count indictment with various crimes stemming from allegations that he robbed a pharmacy while displaying what appeared to be gun.  In satisfaction of all charges, defendant accepted a plea agreement whereby he pleaded guilty to one count of robbery in the second degree and waived his right to appeal.  County Court thereafter sentenced him, in accordance with the terms of the plea agreement, to a prison term of six years, followed by five years of postrelease supervision.  Defendant appeals.

Initially, we reject defendant's assertion that his appeal waiver is invalid.  The record reveals that, at the outset of the plea proceeding, defendant was advised that a waiver of the right to appeal was a condition of the plea agreement, and defendant verbalized his understanding of the terms of that agreement (see People v. Williams, 167 A.D.3d 1084, 1084–1085, 89 N.Y.S.3d 440 [2018], lv denied 32 N.Y.3d 1211, 99 N.Y.S.3d 225, 122 N.E.3d 1138 [2019];  People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018] ).  County Court then conveyed to defendant that his right to appeal was “separate and distinct” from the trial-related rights that he was automatically forfeiting by pleading guilty, and the court confirmed defendant's understanding that he was waiving such right (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).  The record further reflects that defendant executed a written appeal waiver in open court that reiterated the same, and further recited that defendant had discussed the waiver with counsel, understood it and agreed to be bound by it (see People v. Carter, 166 A.D.3d 1212, 1213, 88 N.Y.S.3d 285 [2018];  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] ).  Accordingly, we find that defendant's combined oral and written waiver of appeal was knowing, intelligent and voluntary (see People v. Wood, 161 A.D.3d 1447, 1448, 77 N.Y.S.3d 763 [2018];  People v. Baxter, 154 A.D.3d 1010, 1011, 60 N.Y.S.3d 855 [2017] ).  In light of the valid appeal waiver, defendant's challenge to the agreed-upon sentence as harsh and excessive has been foreclosed (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Walker, 166 A.D.3d 1393, 1394, 86 N.Y.S.3d 920 [2018] ).

Defendant also appears to challenge the sufficiency of the evidence before the grand jury, arguing that there was no proof that he displayed a weapon or used force.  His guilty plea, however, precludes this challenge (see People v. Busreth, 167 A.D.3d 1089, 1090, 87 N.Y.S.3d 406 [2018], lv denied 33 N.Y.3d 946, 100 N.Y.S.3d 188, 123 N.E.3d 847 [Mar. 20, 2019];  People v. Wilburn, 158 A.D.3d 894, 894–895, 71 N.Y.S.3d 181 [2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ).  Although the presence of alleged jurisdictional or constitutional defects in the grand jury proceeding that implicate the integrity of the process may survive a guilty plea and valid waiver of appeal (see People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];  People v. Robertson, 279 A.D.2d 711, 712, 718 N.Y.S.2d 463 [2001] ), the grand jury minutes here do not disclose any such infirmities (see CPL 210.35[5];  People v. Busreth, 167 A.D.3d at 1090, 87 N.Y.S.3d 406;  People v. DeAngelo, 136 A.D.3d 1119, 1119–1120, 25 N.Y.S.3d 405 [2016] ).

To the extent that defendant challenges the voluntariness of his plea, this argument, as well as his related ineffective assistance of counsel claim, survive the valid appeal waiver;  however, such claims are unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Moore, 169 A.D.3d 1110, 1112, 93 N.Y.S.3d 464 [2019];  People v. Rivera, 167 A.D.3d 1324, 1324, 88 N.Y.S.3d 915 [2018];  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] ).  Moreover, the narrow exception to the preservation requirement was not triggered by defendant's statements during the plea allocution or sentencing (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, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).  The balance of defendant's ineffective assistance of counsel claim – including his assertions that counsel failed to explore potential defenses and coerced him into pleading guilty – involve matters outside of the record that are more appropriately suited for a CPL article 440 motion (see People v. Dickerson, 168 A.D.3d 1194, 1195, 90 N.Y.S.3d 702 [2019];  People v. Muller, 166 A.D.3d 1240, 1241, 88 N.Y.S.3d 279 [2018] ).  Defendant's remaining contentions have been considered and are without merit.

ORDERED that the judgment is affirmed.

Aarons, J.

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