PEOPLE v. WEST (2022)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Peter A. Lynch, J.), rendered April 2, 2018, convicting defendant upon his plea of guilty of the crime of gang assault in the first degree.

In satisfaction of a seven-count indictment, defendant pleaded guilty to gang assault in the first degree, with the understanding that he would be sentenced to a prison term of no less than 7 years and no more than 10 years to be followed by five years of postrelease supervision, and that the sentence would run consecutively to a sentence that he was already serving.  As part of the plea agreement, defendant also purportedly waived the right to appeal.  County Court thereafter sentenced defendant to 10 years in prison, to be followed by five years of postrelease supervision, with the sentence ordered to run consecutively to the prison sentence defendant was already serving.  Defendant appealed, and this Court rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal (197 A.D.3d 1436, 151 N.Y.S.3d 655 [3d Dept. 2021]).

Initially, we agree with defendant that his waiver of the right to appeal is invalid.  As we have previously found, this exact written appeal waiver contains overbroad language and County Court's brief colloquy regarding the waiver of the right to appeal did not cure its defects (see People v. Stratton, 201 A.D.3d 1201, 1202, 159 N.Y.S.3d 763 [3d Dept. 2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 243, 189 N.E.3d 350 [2022];  People v. Robinson, 195 A.D.3d 1235, 1236, 145 N.Y.S.3d 864 [3d Dept. 2021]).  As defendant's waiver of the right to appeal is unenforceable, defendant's challenge to the severity of the sentence imposed is not precluded.  Nonetheless, we discern no basis upon which to disturb the sentence as unduly harsh or severe (see CPL 470.15[6][b]), given the violent nature of the crime and that the sentence imposed was both within the range agreed to as part of the plea agreement and well below the maximum sentence for a class B felony offense (see Penal Law §§ 70.02[1][a];  [3][a];  120.07;  People v. Sanders, 134 A.D.3d 1351, 1351, 21 N.Y.S.3d 760 [3d Dept. 2015]).

Defendant's challenge to the voluntariness of his plea is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion, despite having ample opportunity to do so prior to sentencing (see People v. Rubert, 206 A.D.3d 1378, 1380, 170 N.Y.S.3d 346 [3d Dept. 2022];  People v. Davis, 204 A.D.3d 1072, 1074, 166 N.Y.S.3d [3d Dept. 2022], lv denied 38 N.Y.3d 1032, 169 N.Y.S.3d 234, 189 N.E.3d 341 [2022]).  Moreover, defendant did not make any statements during the plea colloquy that cast doubt upon his guilt, negated an element of the crime or called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation rule (see People v. Duckett, 205 A.D.3d 1229, 1230, 168 N.Y.S.3d 178 [3d Dept. 2022];  People v. Pompey, 203 A.D.3d 1411, 1412, 164 N.Y.S.3d 718 [3d Dept. 2022], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 376, 188 N.E.3d 568 [2022]).  Defendant's claim of ineffective assistance of counsel, to the extent that it impacts the voluntariness of the plea, is similarly unpreserved for lack of an appropriate postallocution motion (see People v. Loya, 204 A.D.3d 1255, 1256, 166 N.Y.S.3d 752 [3d Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 444, 191 N.E.3d 396 [2022];  People v. Nack, 200 A.D.3d 1197, 1198, 157 N.Y.S.3d 590 [3d Dept. 2021], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 365, 188 N.E.3d 557 [2022]).  In any event, the alleged inadequacies involve matters outside of the record that are better explored in a CPL article 440 motion (see People v. Linear, 200 A.D.3d 1498, 1499, 159 N.Y.S.3d 233 [3d Dept. 2021], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 477, 185 N.E.3d 998 [2022]).

ORDERED that the judgment is affirmed.

Clark, J.

Garry, P.J., Egan Jr., Ceresia and Fisher, JJ., concur.