PEOPLE v. JONES (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered March 29, 2019, convicting defendant upon his pleas of guilty of the crimes of attempted assault in the first degree and conspiracy in the second degree.

In satisfaction of a 29–count indictment, defendant pleaded guilty to the reduced charge of attempted assault in the first degree and purportedly waived his right to appeal.  In satisfaction of a second indictment and an unindicted charge related to an arrest for possession of cocaine, defendant also pleaded guilty to conspiracy in the second degree and agreed to waive his right to appeal.  Defendant was sentenced to a prison term of 71/212 years followed by five years of postrelease supervision on the attempted assault conviction and a concurrent prison term of 4 to 12 years on the conspiracy conviction.  Defendant appeals.¹

Initially, the People concede, and our review of the record confirms, that the waivers of the right to appeal are invalid as the language used at the colloquies and in the written appeal waivers was overbroad and inaccurate with regard to the scope of such waivers (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020];  People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [2020]).  As such, defendant's challenge to the factual sufficiency of the plea allocution relating to the attempted assault conviction and to the sentence imposed are not foreclosed (compare People v. Gorman, 165 A.D.3d 1349, 1349, 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]).  Nevertheless, defendant's challenge to the factual sufficiency of the allocution, as well as to the voluntariness of the plea, are unpreserved for our review as the record does not reflect that he made any appropriate postallocution motion (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Avera, 192 A.D.3d 1382, 1382–1383, 145 N.Y.S.3d 199 [2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 501, 170 N.E.3d 375 [2021];  People v. Favreau, 174 A.D.3d 1226, 1227, 105 N.Y.S.3d 721 [2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 631, 137 N.E.3d 1 [2019]).  Furthermore, we are unpersuaded by defendant's contention that the narrow exception to the preservation requirement was triggered here (see People v. Avera, 192 A.D.3d at 1383, 145 N.Y.S.3d 199;  People v. Favreau, 174 A.D.3d at 1228, 105 N.Y.S.3d 721).  No factual allocution was necessary as defendant pleaded guilty to a lesser crime as part of a plea bargain and, contrary to defendant's contention, the record reveals no confusion as to the offense to which he was pleading guilty that would excuse the lack of preservation (see People v. Johnson, 23 N.Y.3d 973, 975–976, 989 N.Y.S.2d 680, 12 N.E.3d 1109 [2014];  People v. Moore, 71 N.Y.2d 1002, 1006, 530 N.Y.S.2d 94, 525 N.E.2d 740 [1988];  People v. Favreau, 174 A.D.3d at 1227–1228, 105 N.Y.S.3d 721).  As for defendant's challenge to the sentence being harsh and excessive, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the agreed-upon sentence in the interest of justice (see People v. Woods, 166 A.D.3d 1298, 1299–1300, 88 N.Y.S.3d 663 [2018], lv denied 33 N.Y.3d 1036, 102 N.Y.S.3d 498, 126 N.E.3d 148 [2019]).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   To the extent that defendant continues to seek certain discovery and Brady material in preparation for this appeal, he already advanced that issue in a motion to this Court that was denied (2020 N.Y. Slip Op. 75579[U], 2020 WL 7084149 [2021]), and he is precluded from revisiting the issue in his brief (see e.g. People v. Collins, 238 A.D.2d 435, 436, 656 N.Y.S.2d 356 [1997], lv denied 90 N.Y.2d 903, 663 N.Y.S.2d 515, 686 N.E.2d 227 [1997];  People v. Jacobs, 220 A.D.2d 617, 617, 633 N.Y.S.2d 974 [1995], lvs denied 87 N.Y.2d 903, 905, 641 N.Y.S.2d 233, 235, 663 N.E.2d 1263, 1265 [1995]).  Defendant's related claim involves matters outside the record and is, as a result, “more appropriately the subject of a CPL article 440 motion” (People v. Rodriguez, 195 A.D.3d 1237, 1242, 148 N.Y.S.3d 538 [2021];  see People v. Brown, 139 A.D.3d 1178, 1179, 31 N.Y.S.3d 308 [2016]).

Egan Jr., J.

Garry, P.J., Lynch, Clark and Pritzker, JJ., concur.