PEOPLE v. DRAKE (2020)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 3, 2017, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Pursuant to a plea agreement, defendant pleaded guilty to burglary in the second degree in satisfaction of a two-count indictment and waived his right to appeal.  County Court sentenced him to a prison term of six years, followed by five years of postrelease supervision, in accordance with the terms of the agreement and ordered restitution in the amount of $7,865.  Defendant appeals.

We affirm.  Defendant's challenge to the validity of his waiver of the right to appeal is unavailing.  County Court thoroughly explained to defendant that his right to appeal was separate and distinct from the trial-related rights that he would be automatically forfeiting by pleading guilty, and defendant repeatedly confirmed that he understood the nature of the waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Harrison, 176 A.D.3d 1262, 1263, 109 N.Y.S.3d 770 [2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 760, 138 N.E.3d 489 [Nov. 29, 2019];  People v. Hunt, 176 A.D.3d 1253, 1253–1254, 111 N.Y.S.3d 134 [2019]).  Additionally, defendant executed a detailed written waiver in open court, which he reviewed with the assistance of counsel and assured the court that he had read and understood (see People v. Stebbins, 171 A.D.3d 1395, 1396, 98 N.Y.S.3d 670 [2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 698, 130 N.E.3d 1308 [2019];  People v. Johnson, 170 A.D.3d 1274, 1275, 95 N.Y.S.3d 467 [2019];  People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019]).  Under these circumstances, we find that defendant knowingly, intelligently and voluntarily waived his right to appeal.  In light of the valid appeal waiver, defendant's challenge to the severity of the agreed-upon sentence has been foreclosed (see People v. Brassard, 175 A.D.3d 1723, 1724, 109 N.Y.S.3d 510 [2019];  People v. Bayne, 175 A.D.3d 1722, 1723, 107 N.Y.S.3d 192 [2019];  People v. Cannelli, 173 A.D.3d 1567, 1568, 101 N.Y.S.3d 668 [2019]).

Although defendant's challenge to the voluntariness of his plea and his ineffective assistance of counsel claim – to the extent that it impacts the voluntariness of his plea – survive his valid appeal waiver, these issues are unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion, despite having ample opportunity to do so prior to sentencing (see People v. Horton, 173 A.D.3d 1342, 1343, 102 N.Y.S.3d 761 [2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 701, 133 N.E.3d 401 [2019];  People v. Freeman, 169 A.D.3d 1115, 1116, 92 N.Y.S.3d 496 [2019], lv denied 33 N.Y.3d 1069, 105 N.Y.S.3d 46, 129 N.E.3d 366 [2019];  People v. Dickerson, 168 A.D.3d 1194, 1195, 90 N.Y.S.3d 702 [2019]).  Additionally, as defendant did not make any statements during the plea colloquy or at sentencing that were inconsistent with his guilt or that otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement is inapplicable (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).  We also note that many of defendant's allegations of ineffective assistance, such as counsel's failure to advise him of certain defenses, involve matters outside of the record and are, thus, more properly pursued through a CPL article 440 motion (see People v. Mastro, 174 A.D.3d 1232, 1233, 105 N.Y.S.3d 715 [2019];  People v. White, 172 A.D.3d 1822, 1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019];  People v. Retell, 164 A.D.3d 1501, 1502, 82 N.Y.S.3d 279 [2018]).

Defendant's challenge to the amount of restitution ordered is not precluded by the appeal waiver, as the amount was not specifically set in the plea agreement (see People v. Hunter, 175 A.D.3d 1601, 1604, 108 N.Y.S.3d 527 [2019];  People v. Mahon, 148 A.D.3d 1303, 1304, 48 N.Y.S.3d 842 [2017];  People v. Ortiz, 148 A.D.3d 1291, 1292, 48 N.Y.S.3d 834 [2017]).  Nevertheless, this issue is also unpreserved, as defendant did not request a restitution hearing and ultimately agreed to the amount awarded to the victim (see People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002];  People v. Perry, 168 A.D.3d 1287, 1288, 91 N.Y.S.3d 811 [2019];  People v. Miller, 126 A.D.3d 1233, 1234, 6 N.Y.S.3d 685 [2015], lv denied 25 N.Y.3d 1168, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015]).

ORDERED that the judgment is affirmed.

Colangelo, J.

Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur.