PEOPLE v. ALEXANDER (2019)

MEMORANDUM AND ORDER

In satisfaction of a 10–count indictment charging him with various sex-related offenses, defendant pleaded guilty to rape in the second degree and waived his right to appeal.  Consistent with the terms of the plea agreement, County Court sentenced defendant, as a second felony offender, to a prison term of 31/212 years to be followed by 15 years of postrelease supervision.  Defendant appeals.

We affirm.  Initially, we find defendant's waiver of the right to appeal to be invalid.  In addition to failing to inform defendant that the right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty,¹ the record reflects that County Court did not adequately explain the nature of the waiver or ascertain that defendant understood its many ramifications (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Latifi, 171 A.D.3d 1351, 1351, 98 N.Y.S.3d 668 [2019] ).  “Additionally, although defendant signed a written waiver of appeal, County Court did not verify that defendant had read and understood the written appeal waiver or discussed it with counsel” (People v. Cook, 171 A.D.3d 1361, 1361, 96 N.Y.S.3d 921 [2019] [internal quotation marks and citations omitted];  see People v. Miller, 166 A.D.3d 1385, 1386, 88 N.Y.S.3d 696 [2018], lv denied 32 N.Y.3d 1207, 99 N.Y.S.3d 194, 122 N.E.3d 1107 [2019] ).

As to defendant's claim that his plea was involuntary, such contention is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  People v. Lamb, 162 A.D.3d 1395, 1396, 80 N.Y.S.3d 520 [2019], lv denied 32 N.Y.3d 1112, 91 N.Y.S.3d 364, 115 N.E.3d 636 [2018] ), and the narrow exception to the preservation rule is inapplicable as 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 (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. Mais, 168 A.D.3d 1142, 1143, 89 N.Y.S.3d 487 [2019] ).  To the extent that defendant's claim that he was denied the effective assistance of counsel impacts the voluntariness of his plea, it is similarly unpreserved due to the lack of a postallocution motion (see People v. Allevato, 170 A.D.3d 1264, 1265, 93 N.Y.S.3d 753 [2019] ).  Inasmuch as defendant contends that counsel failed to investigate the case against him and that an alleged inconsistent statement was included in discovery material, such claims are premised upon matters that are outside of the record on appeal and, as such, are more appropriately considered in a motion pursuant to CPL article 440 (see People v. Miller, 166 A.D.3d 812, 813, 88 N.Y.S.3d 199 [2018], lv denied 33 N.Y.3d 951, 100 N.Y.S.3d 160, 123 N.E.3d 819 [2019];  People v. Torres, 165 A.D.3d 1325, 1326, 85 N.Y.S.3d 242 [2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 190, 122 N.E.3d 1103 [2019] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   During the plea colloquy, County Court only questioned defendant whether “separate and apart [he] and [his counsel] ha[d] discussed [his] right to appeal” and failed to explain to defendant that the right to appeal — and not his conversation with counsel about that right — was separate and distinct from the other trial-related rights that he was forfeiting by pleading guilty.

Pritzker, J.

Garry, P.J., Mulvey, Aarons and Rumsey, JJ., concur.