PEOPLE v. BOTTS (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered January 9, 2018 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.

In July 2017, defendant and his codefendant were charged, in a 21–count indictment, with various crimes for unlawfully entering and burglarizing a residence in Albany County. In satisfaction of the 17 counts against him, defendant pleaded guilty to burglary in the first degree and agreed to waive his right to appeal. In accordance with the terms of the plea agreement, defendant was sentenced, as a second violent felony offender, to a prison sentence of 13 years, followed by five years of postrelease supervision. Defendant appeals.

We affirm. Supreme Court made clear that the waiver of the right to appeal was a condition of the plea bargain, adequately distinguished the right to appeal as separate and apart from the trial-related rights forfeited by virtue of the guilty plea, and confirmed with defendant that he understood the waiver and its consequences. Additionally, defendant executed a written appeal waiver, after having an opportunity to review it with defense counsel, and assured the court that he understood it. In view of foregoing, we find that defendant knowingly, voluntarily and intelligently waived his 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. Hammond, 186 A.D.3d 1836, 1836–1837, 129 N.Y.S.3d 345 [2020]; People v. Taft, 169 A.D.3d 1266, 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]). Given the valid appeal waiver, defendant's challenge to the sentence as harsh and excessive is foreclosed (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Burnett, 186 A.D.3d 1837, 1838, 129 N.Y.S.3d 344 [2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 486, 162 N.E.3d 715 [Dec. 8, 2020]; People v. Purnell, 186 A.D.3d 1834, 1834–1835, 129 N.Y.S.3d 358 [2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 481, 162 N.E.3d 710 [Dec. 10, 2020]).

Defendant's challenge to the voluntariness of the plea survives the valid appeal waiver, but is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Apelles, 185 A.D.3d 1298, 1299, 127 N.Y.S.3d 652 [2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 287, 155 N.E.3d 780 [2020]; People v. Gumbs, 182 A.D.3d 701, 702, 122 N.Y.S.3d 746 [2020], lv denied 35 N.Y.3d 1066, 129 N.Y.S.3d 398, 152 N.E.3d 1200 [2020]). Furthermore, the narrow exception to the preservation requirement was not implicated as the record does not disclose that defendant made any statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of the plea (see People v. Rodriguez, 185 A.D.3d 1233, 1235, 127 N.Y.S.3d 644 [2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 460, 162 N.E.3d 689 [Dec. 15, 2020]; People v. Gumbs, 182 A.D.3d at 702, 122 N.Y.S.3d 746). Defendant's contention that he was denied the effective assistance of counsel is precluded by the valid appeal waiver except to the extent that it impacts the voluntariness of the plea, but is also unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Harrington, 185 A.D.3d 1301, 1302, 125 N.Y.S.3d 901 [2020]; People v. Vilbrin, 183 A.D.3d 1012, 1013, 123 N.Y.S.3d 297 [2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 861, 151 N.E.3d 543 [2020]).

Defendant also challenges the factual sufficiency of the indictment, claiming, among other things, that the indictment was based upon hearsay evidence and the requisite intent required for the conviction was lacking. Defendant's challenges to the sufficiency of the indictment, however, were waived by his guilty plea (see People v. McDonald, 165 A.D.3d 1327, 1328, 83 N.Y.S.3d 751 [2018], lv denied 32 N.Y.3d 1175, 97 N.Y.S.3d 591, 121 N.E.3d 218 [2019]; People v. Rivera, 164 A.D.3d 1573, 1574–1575, 83 N.Y.S.3d 749 [2018], lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 603, 121 N.E.3d 230 [2019]). Furthermore, his challenges to the sufficiency of the plea were waived by the valid appeal waiver (see People v. McDonald, 165 A.D.3d at 1328, 83 N.Y.S.3d 751; People v. Rodriguez, 154 A.D.3d 1013, 1014, 60 N.Y.S.3d 858 [2017]). Defendant's remaining contentions, to the extent not specifically addressed, have been examined and lack merit.

ORDERED that the judgment is affirmed.

Clark, J.

Egan Jr., J.P., Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.