PEOPLE v. SHIN PING BRASSARD (2019)

MEMORANDUM AND ORDER

Defendant waived indictment, pleaded guilty to a superior court information charging her with sexual abuse in the first degree and was required to waive the right to appeal.  County Court thereafter imposed the agreed-upon prison sentence of seven years, to be followed by 10 years of postrelease supervision.  Defendant appeals.

We affirm.  Contrary to defendant's contention, the record reflects that her waiver of the right to appeal was valid.  Defendant was advised during the plea colloquy that a waiver of the right to appeal was a condition of the plea agreement.  County Court thereafter explained the separate and distinct nature of the waiver, which defendant acknowledged that she understood.  Defendant then confirmed that counsel had explained the waiver.  Accordingly, we find that defendant knowingly, intelligently and voluntarily waived her right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Peryea, 169 A.D.3d 1120, 1120, 93 N.Y.S.3d 456 [2019], lv denied 33 N.Y.3d 980, 101 N.Y.S.3d 242, 124 N.E.3d 731 [2019]).  Defendant's valid appeal waiver precludes her challenge to the severity of her sentence (see People v. Dorsey, 170 A.D.3d 1325, 1326, 94 N.Y.S.3d 420 [2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 38, 129 N.E.3d 358 [2019];  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]).

To the extent that defendant's claim of ineffective assistance of counsel impacts the voluntariness of her plea, it survives her appeal waiver but is unpreserved for our review, inasmuch as the record does not reflect that she made an appropriate postallocution motion (see People v. Danielson, 170 A.D.3d 1430, 1432, 96 N.Y.S.3d 754 [2019], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019];  People v. Norton, 164 A.D.3d 1502, 1503, 82 N.Y.S.3d 665 [2018], lv denied 32 N.Y.3d 1114, 91 N.Y.S.3d 365, 115 N.E.3d 637 [2018]).  Although defendant stated during the plea colloquy that she was not satisfied with counsel's representation because counsel had not spent enough time with her discussing her case, County Court then recessed the proceeding to allow defendant to speak further with counsel.  Following the recess, the court confirmed with defendant that she had been provided enough time to discuss the matter with counsel, that she understood the ramifications of the plea agreement and that she was satisfied with counsel's representation.  Insofar as County Court fulfilled its obligation to inquire further regarding the knowing, intelligent and voluntary nature of defendant's plea, the narrow exception to the preservation requirement is inapplicable (see People v. Goodell, 104 A.D.3d 1026, 1026, 960 N.Y.S.2d 744 [2013], lv denied 22 N.Y.3d 1138, 983 N.Y.S.2d 497, 6 N.E.3d 616 [2014];  People v. Ferro, 101 A.D.3d 1243, 1244, 956 N.Y.S.2d 225 [2012], lv denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532 [2013]).  Defendant's assertions that counsel failed to explore a viable defense and did not pursue certain motions involve matters outside of the record and are more properly the subject of a CPL article 440 motion (see People v. Retell, 164 A.D.3d 1501, 1502, 82 N.Y.S.3d 279 [2018];  People v. Griffin, 134 A.D.3d 1228, 1230, 20 N.Y.S.3d 738 [2015], lv denied 27 N.Y.3d 1132, 39 N.Y.S.3d 114, 61 N.E.3d 513 [2016]).

ORDERED that the judgment is affirmed.

Pritzker, J.

Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur.