PEOPLE v. DEJESUS (2022)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Peter A. Lynch, J.), rendered April 15, 2018, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.

In August 2017 defendant and a codefendant were charged in a five-count superseding indictment with two counts of robbery in the first degree, robbery in the second degree and two counts of burglary in the first degree based upon allegations that they, with another, forcibly broke into the victims’ home and stole certain property.  In satisfaction of the foregoing, as well as unindicted charges stemming from a subsequent arrest, defendant pleaded guilty to count 2, robbery in the first degree, and waived his right to appeal.  County Court sentenced defendant, in accord with the terms of the plea agreement, to a prison term of 12 years to be followed by five years of postrelease supervision.  Defendant appeals.  We affirm.

Despite indicating that he wished to withdraw his plea as a result of the length of the bargained for sentence, upon conferring with counsel, defendant did not do so.  Thus, while defendant's attack on the voluntariness of his plea survives his unchallenged appeal waiver, it is unpreserved for our review given his failure to make an appropriate postallocution motion despite the opportunity to do so (see People v. Reese, 206 A.D.3d 1461, 1463, 170 N.Y.S.3d 375 [3d Dept. 2022];  People v. Parkinson, 199 A.D.3d 1243, 1243, 157 N.Y.S.3d 198 [3d Dept. 2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 708, 181 N.E.3d 1136 [2022]).  The narrow exception to the preservation requirement does not apply here as “defendant did not make any statements during the plea colloquy [or at sentencing] that were inconsistent with his guilt, negated an essential element of the charged crime or otherwise called into question the voluntariness of his plea” (People v. Silva, 205 A.D.3d 1226, 1227, 166 N.Y.S.3d 619 [3d Dept. 2022] [internal quotation marks and citation omitted], lv denied 38 N.Y.3d 1074, 171 N.Y.S.3d 450, 191 N.E.3d 402 [2022]).  Moreover, defendant's postplea claim of innocence, articulated during his presentence investigation interview, “did not obligate County Court to conduct a further inquiry” (People v. Duckett, 205 A.D.3d 1229, 1230, 168 N.Y.S.3d 178 [3d Dept. 2022];  see People v. Bailey, 158 A.D.3d 948, 949, 71 N.Y.S.3d 667 [3d Dept. 2018]).

Defendant's challenge to the severity of his sentence is foreclosed by his unchallenged appeal waiver (see People v. Agueda, 202 A.D.3d 1153, 1154, 160 N.Y.S.3d 489 [3d Dept. 2022], lv denied 38 N.Y.3d 1031, 169 N.Y.S.3d 209, 189 N.E.3d 316 [2022]).  To the extent that defendant's claim that he received ineffective assistance of counsel impacts the voluntariness of his plea, such claim survives his appeal waiver but is similarly unpreserved in light of his failure to make an appropriate postallocution motion (see People v. Lende, 204 A.D.3d 1224, 1225, 165 N.Y.S.3d 382 [3d Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 51, 194 N.E.3d 758 [2022];  People v. Deans, 202 A.D.3d 1161, 1161–1162, 158 N.Y.S.3d 652 [3d Dept. 2022]).  Defendant's pro se contention that the People have failed to abide by their promise to return certain property at the close of codefendant's case is more properly the subject of a CPLR article 78 proceeding seeking the return of such property (see generally Matter of Khoshneviss v. Property Clerk of N.Y. City Police Dept., 123 A.D.3d 929, 929, 1 N.Y.S.3d 122 [2d Dept. 2014], lv denied 25 N.Y.3d 903, 2015 WL 1526077 [2015];  Matter of James v. Cattaraugus County, 101 A.D.3d 1674, 1674–1675, 956 N.Y.S.2d 379 [4th Dept. 2012]) and his related contention that this failure impacted the voluntariness of his plea is unpreserved (see People v. Reese, 206 A.D.3d at 1462, 170 N.Y.S.3d 375).  We have reviewed defendant's remaining contentions and find them to be lacking in merit.

ORDERED that the judgment is affirmed.

Reynolds Fitzgerald, J.

Egan Jr., J.P., Clark, Pritzker and Ceresia, JJ., concur.