PEOPLE v. WEIDENHEIMER (2020)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Franklin County (Richards, J.), rendered November 29, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to criminal possession of a weapon in the third degree and waived the right to appeal. County Court thereafter sentenced him to 180 days in jail and five years of probation, to be served concurrently. Defendant appeals.

We affirm. Contrary to defendant's contention, the record demonstrates that he knowingly, intelligently and voluntarily waived the right to appeal. The record reflects that the appeal waiver was a condition of the plea agreement, that County Court explained the separate and distinct nature of the waiver and that defendant affirmed his understanding thereof (see People v. Feurtado, 172 A.D.3d 1620, 1620, 99 N.Y.S.3d 144 [2019], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 751, 133 N.E.3d 457 [2019]; People v. Johnson, 153 A.D.3d 1031, 1032, 60 N.Y.S.3d 580 [2017], lv denied 30 N.Y.3d 980, 67 N.Y.S.3d 583, 89 N.E.3d 1263 [2017]). Additionally, defendant signed a written waiver in open court and, in response to County Court's questioning, indicated that he had reviewed the written waiver, discussed its contents with counsel prior to signing it and understood its terms (see People v. White, 172 A.D.3d 1822, 1823, 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. Hall, 167 A.D.3d 1165, 1165–1166, 89 N.Y.S.3d 481 [2018], lvs denied 32 N.Y.3d 1201, 1204, 99 N.Y.S.3d 246, 122 N.E.3d 1158 [2019]). Accordingly, and insofar as we discern no other infirmities with the appeal waiver (compare People v. Thomas, 34 N.Y.3d 545, 557-58, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *6–7 [2019]), we conclude that defendant validly waived the right to appeal his conviction and sentence. Defendant's valid appeal waiver precludes his contention that his sentence is harsh and excessive (see People v. Snare, 174 A.D.3d 1222, 1223, 102 N.Y.S.3d 902 [2019], lv denied 34 N.Y.3d 984, 113 N.Y.S.3d 640, 137 N.E.3d 10 [2019]; People v. Cannelli, 173 A.D.3d 1567, 1568, 101 N.Y.S.3d 668 [2019]).

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 appeal waiver but are unpreserved for our review given that the record does not reflect that he made an appropriate postallocution motion despite having the opportunity to do so (see People v. Griffin, 177 A.D.3d 1039, 1040, 109 N.Y.S.3d 923 [2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 146, 139 N.E.3d 804 [2019]; People v. White, 172 A.D.3d at 1823, 101 N.Y.S.3d 519). Moreover, defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. Richards, 176 A.D.3d 1496, 1499, 113 N.Y.S.3d 351 [2019]; People v. Mastro, 174 A.D.3d 1232, 1232, 105 N.Y.S.3d 715 [2019]). Accordingly, defendant's contention that County Court failed to advise him of the constitutional trial-related rights that he was forfeiting by pleading guilty (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969]) was not preserved (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]; People v. Small, 166 A.D.3d 1237, 1238, 86 N.Y.S.3d 677 [2018]). In any event, the record reflects that defendant was fully advised of and understood the waiver of his trial-related rights (see People v. Conceicao, 26 N.Y.3d at 381–384, 23 N.Y.S.3d 124, 44 N.E.3d 199; People v. Toledo, 144 A.D.3d 1332, 1333, 40 N.Y.S.3d 680 [2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017]). The balance of defendant's ineffective assistance of counsel claim, including that counsel failed to adequately investigate the law or the facts surrounding the charges or explore potential defenses, concern matters outside of the record and are more properly the subject of a CPL article 440 motion (see 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]; People v. Breault, 150 A.D.3d 1548, 1549, 52 N.Y.S.3d 683 [2017]).

ORDERED that the judgment is affirmed.

Devine, J.

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