PEOPLE v. THOMAS (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered December 7, 2016, convicting defendant upon his plea of guilty of the crimes of grand larceny in the third degree and forgery in the second degree.

In August 2016, defendant was charged in an indictment with one count of grand larceny in the third degree and 25 counts of forgery in the second degree.  In full satisfaction of the indictment, defendant pleaded guilty to grand larceny in the third degree and forgery in the second degree and waived his right to appeal.  Thereafter, consistent with the terms of the negotiated plea agreement, County Court sentenced defendant to concurrent prison terms of 2 to 6 years.  Defendant appeals.

We affirm.  Although defendant's challenge to the voluntariness of his plea is not precluded by his unchallenged appeal waiver (see People v. Castro, 170 A.D.3d 1286, 1287–1288, 95 N.Y.S.3d 457 [2019], lv denied 33 N.Y.3d 1029, 102 N.Y.S.3d 512, 126 N.E.3d 162 [2019]; People v. Gorman, 165 A.D.3d 1349, 1350, 85 N.Y.S.3d 614 [2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018]), this claim “is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion despite having had ample opportunity to do so prior to sentencing” (People v. Gorman, 165 A.D.3d at 1349, 85 N.Y.S.3d 614; see People v. Blackburn, 164 A.D.3d 960, 961, 82 N.Y.S.3d 242 [2018]; People v. Conley, 161 A.D.3d 1486, 1486–1487, 77 N.Y.S.3d 772 [2018]).  Moreover, the narrow exception to the preservation rule is inapplicable here, as defendant did not make any statements that were inconsistent with his guilt or cast doubt on the voluntariness of his plea (see People v. Williams, 27 N.Y.3d 212, 220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016]; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).

Similarly, to the extent that defendant's ineffective assistance of counsel claim concerns the voluntariness of his plea, it survives his unchallenged appeal waiver (see People v. Gardiner, 159 A.D.3d 1233, 1234, 73 N.Y.S.3d 643 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018]; People v. Williams, 150 A.D.3d 1549, 1551, 56 N.Y.S.3d 357 [2017]; People v. Taylor, 144 A.D.3d 1317, 1318, 41 N.Y.S.3d 587 [2016], lvs denied 28 N.Y.3d 1144, 1151, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017]), but is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Gorman, 165 A.D.3d at 1350, 85 N.Y.S.3d 614; People v. Young, 158 A.D.3d 955, 956, 68 N.Y.S.3d 773 [2018], lv denied 31 N.Y.3d 1090, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018]; People v. Perkins, 140 A.D.3d 1401, 1402–1403, 33 N.Y.S.3d 584 [2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016]).  We do not agree with defendant that his claim warrants the exercise of our interest of justice jurisdiction to take corrective action (see CPL 470.15[3]).  The claim, in any event, involves matters outside of the record on appeal that are more properly raised in a CPL article 440 motion (see People v. Williams, 163 A.D.3d 1172, 1173, 81 N.Y.S.3d 636 [2018], lv denied 32 N.Y.3d 1009, 86 N.Y.S.3d 768, 111 N.E.3d 1124 [2018]; People v. Rutigliano, 159 A.D.3d 1280, 1281, 73 N.Y.S.3d 674 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018]).

ORDERED that the judgment is affirmed.

Devine, J.

Egan Jr., J.P., Clark and Aarons, JJ., concur.