PEOPLE v. MORTON (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered December 14, 2016, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

In satisfaction of a one-count indictment and other pending charges, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree and waived his right to appeal, both orally and in writing.  In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to seven years in prison, followed by five years of postrelease supervision, to run concurrently with a sentence imposed in connection with his violation of probation (People v. Morton, 173 A.D.3d 1445, 103 N.Y.S.3d 683, 2019 WL 2528769 [appeal No. 108786, decided herewith] ).  Defendant appeals.

Initially, defendant's challenge to the validity of his appeal waiver is without merit.  During the plea colloquy, County Court explained to defendant that, notwithstanding the automatic forfeiture of his trial-related rights resulting from his guilty plea, defendant ordinarily retained his right to appeal his case to a higher court (see People v. Dickerson, 168 A.D.3d 1194, 1194, 90 N.Y.S.3d 702 [2019];  People v. Smith, 157 A.D.3d 1059, 1060, 69 N.Y.S.3d 190 [2018], lv denied 31 N.Y.3d 987, 77 N.Y.S.3d 665 102 N.E.3d 442 [2018] ).  This adequately conveyed to defendant the separate and distinct nature of his right to appeal (see People v. Tucker, 164 A.D.3d 948, 949, 81 N.Y.S.3d 677 [2018] ).  County Court went on to explain that the waiver of appeal was a condition of his plea agreement, which defendant indicated he understood, and then, after consulting with counsel, defendant executed a written waiver of appeal in open court, which he indicated he signed and understood (see People v. McDonald, 165 A.D.3d 1327, 1327–1328, 83 N.Y.S.3d 751 [2018], lv denied 32 N.Y.3d 1175, 97 N.Y.S.3d 591, 121 N.E.3d 218 [2019];  People v. Venable, 161 A.D.3d 1315, 1315, 73 N.Y.S.3d 459 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ).  In these circumstances, we find that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Dickerson, 168 A.D.3d at 1194, 90 N.Y.S.3d 702;  People v. McDonald, 165 A.D.3d at 1328, 83 N.Y.S.3d 751).  Accordingly, defendant's challenge to the severity of the promised sentence is precluded (see People v. McDonald, 165 A.D.3d at 1328, 83 N.Y.S.3d 751;  People v. Velez, 158 A.D.3d 952, 952–953, 68 N.Y.S.3d 776 [2018] ).

Although defendant's challenge to the voluntariness of his plea survives his appeal waiver, this claim has not been preserved for our review as the record does not disclose that he made an appropriate postallocution motion despite having an opportunity to do so before sentencing (see People v. Dickerson, 168 A.D.3d at 1194–1195, 90 N.Y.S.3d 702;  People v. Mais, 168 A.D.3d 1142, 1143, 89 N.Y.S.3d 487 [2019] ).  Moreover, the exception to the preservation rule is inapplicable as defendant did not make any statements that negated his guilt or called into question the voluntariness of his guilty plea (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Bonfante, 167 A.D.3d 1160, 1160, 87 N.Y.S.3d 914 [2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 221, 122 N.E.3d 1134 [2019] ).  Defendant's generalized claim that he was denied the effective assistance of counsel – to the extent that it impacted the voluntariness of his guilty plea – is also unpreserved for the same reason (see People v. Dickerson, 168 A.D.3d at 1195, 90 N.Y.S.3d 702;  People v. Mais, 168 A.D.3d at 1143, 89 N.Y.S.3d 487).

Lastly, defendant maintains that his conviction should be vacated because the certificate of conviction and the uniform sentence and commitment form erroneously state that he was convicted of criminal possession of a weapon in the second degree.  The People concede and the record confirms that the subject documents contain this error.  However, rather than vacating the conviction, the proper remedy is to remit the matter to County Court for correction of the error on both forms (see People v. Payne, 148 A.D.3d 1226, 1227–1228, 49 N.Y.S.3d 761 [2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017];  People v. Butler, 134 A.D.3d 1349, 1350, 22 N.Y.S.3d 617 [2015], lvs denied 27 NY3d 962, 963, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016] ).

ORDERED that the judgment is affirmed, and matter remitted for entry of an amended uniform sentence and commitment form and an amended certificate of conviction.

Pritzker, J.

Garry, P.J., Clark, Mulvey and Devine, JJ., concur.