PEOPLE v. CARROLL (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered July 13, 2016, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fourth degree (two counts).

In satisfaction of a four-count indictment, defendant agreed to plead guilty to criminal sale of a controlled substance in the fourth degree (two counts) with a recommended prison term of four years upon each conviction followed by three years of postrelease supervision.  The contemplated prison terms would run concurrently with one another but consecutively to the prison term that defendant then was serving.  Consistent with the terms of the plea agreement, which also required defendant to waive his right to appeal, defendant pleaded guilty to the two sale counts, and County Court thereafter sentenced defendant as a second felony offender to the recommended terms of imprisonment.  Defendant appeals.

We need not consider the validity of defendant's appeal waiver (see People v. Rivera, 167 A.D.3d 1324, 1324, 88 N.Y.S.3d 915 [2018];  People v. Guynup, 159 A.D.3d 1223, 1224, 73 N.Y.S.3d 645 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018] ), as his challenge to the voluntariness of his plea and his related ineffective assistance of counsel claim (to the extent that it impacts upon the voluntariness of his plea) survive even a valid appeal waiver but 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], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 233, 124 N.E.3d 722, 2019 WL 2070899 [Apr. 25, 2019];  People v. Rivera, 167 A.D.3d at 1324, 88 N.Y.S.3d 915;  People v. Spears, 78 A.D.3d 1380, 1380, 911 N.Y.S.2d 245 [2010] ).  In this regard, “defendant's reliance upon his unsworn statements contained within a postplea letter sent to County Court prior to sentencing, which contradicted his sworn plea allocution, is unavailing, as said letter neither properly preserved this issue for appeal nor constituted a motion to withdraw his guilty plea” (People v. Quell, 166 A.D.3d 1388, 1389, 86 N.Y.S.3d 814 [2018], lv denied 32 N.Y.3d 1208 [2019], citing People v. Willard, 159 A.D.3d 1228, 1229, 73 N.Y.S.3d 281 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018];  People v. Rayburn, 150 A.D.3d 1553, 1554–1555, 1555 n., 55 N.Y.S.3d 512 [2017] ).  “Moreover, defendant's pro se submission prior to sentencing [was insufficient for preservation purposes] because he was represented by counsel and was not entitled to hybrid representation” (People v. Horton, 166 A.D.3d 1226, 1227, 86 N.Y.S.3d 352 [2018] [citation omitted] ).  Finally, defendant's postplea assertions of innocence were unsworn and otherwise unsubstantiated and, as such, County Court was under no duty to further inquire prior to sentencing defendant to the recommended terms of imprisonment (see People v. Rodriguez, 154 A.D.3d 968, 969, 63 N.Y.S.3d 441 [2017], lv denied 30 N.Y.3d 1108, 77 N.Y.S.3d 7, 101 N.E.3d 393 [2018];  cf. People v. Rivera, 167 A.D.3d at 1324, 88 N.Y.S.3d 915;  People v. Allen, 166 A.D.3d 1210, 1210–1211, 85 N.Y.S.3d 803 [2018], lvs denied 32 N.Y.3d 1201, 1206, 99 N.Y.S.3d 198, 122 N.E.3d 1111 [2019];  People v. Bailey, 158 A.D.3d 948, 949, 71 N.Y.S.3d 667 [2018] ).

Contrary to defendant's assertion, he did not make any statements on the record that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea and, therefore, the narrow exception to the preservation requirement was not triggered (see People v. Rivera, 167 A.D.3d at 1324, 88 N.Y.S.3d 915;  People v. Quell, 166 A.D.3d at 1389, 86 N.Y.S.3d 814).  To the extent that defendant faults counsel for failing to properly investigate his case, conduct more extensive discovery or explore possible defenses, these claims implicate matters outside of the record and, as such, are more properly addressed in the context of a CPL article 440 motion (see People v. Moore, 169 A.D.3d at 1112, 93 N.Y.S.3d 464).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Rumsey, J.

Lynch, J.P., Mulvey, Devine and Aarons, JJ., concur.