PEOPLE v. PARKINSON (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered February 13, 2020 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Following two sales of cocaine to a confidential informant, defendant was charged in a nine-count indictment with various offenses related to his sale and possession of drugs and his tampering with physical evidence.  Defendant pleaded not guilty to the charges and, after the conclusion of pretrial motion practice and hearings, the matter proceeded to trial.  In the midst of that trial, defendant pleaded guilty to criminal sale of a controlled substance in the third degree in satisfaction of the indictment and waived his right to appeal.  Under the terms of the plea agreement, Supreme Court committed to sentencing defendant to no more than two years in prison to be followed by two years of postrelease supervision.  At sentencing, Supreme Court clarified the scope of defendant's appeal waiver, and he confirmed that he had discussed the issue with counsel, understood his right to appeal and was voluntarily waiving it.  Supreme Court thereafter sentenced him to two years in prison to be followed by two years of postrelease supervision.  Defendant appeals, and we affirm.¹

Defendant's argument that his guilty plea was not knowing, intelligent and voluntary survives his unchallenged appeal waiver, but is unpreserved given that the record is devoid of any indication that he made an appropriate postallocution motion despite having had ample time in which do so (see People v. McCoy, 198 A.D.3d 1021, 1022, 152 N.Y.S.3d 635, 636 [2021];  People v. White, 172 A.D.3d 1822, 1823–1824, 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]).  The narrow exception to the preservation requirement does not apply, as defendant said nothing during the plea colloquy that was inconsistent with his guilt, negated an essential element of the charged crime or otherwise called the voluntariness of his plea into question (see People v. McCoy, 152 N.Y.S.3d at 636;  People v. Murray, 197 A.D.3d 1355, 1356, 150 N.Y.S.3d 901 [2021]).  To the extent that defendant's ineffective assistance of counsel claim implicates the voluntariness of his plea and thereby survives his appeal waiver, it is unpreserved for the same reason (see People v. McCoy, 152 N.Y.S.3d at 636;  People v. Guerrero, 194 A.D.3d 1258, 1261, 147 N.Y.S.3d 264 [2021], lv denied 37 N.Y.3d 992, 152 N.Y.S.3d 412, 174 N.E.3d 352 [2021]).

Defendant's remaining contentions, even accepting that they survive his appeal waiver, are without merit.  By pleading guilty in the midst of trial, he forfeited his claim that the People violated their Rosario obligation by failing to turn over certain text messages between law enforcement officials (see People v. Hansen, 95 N.Y.2d 227, 230–233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];  People v. Miller, 162 A.D.3d 1231, 1234, 79 N.Y.S.3d 348 [2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018];  People v. West, 184 A.D.2d 743, 744, 585 N.Y.S.2d 467 [1992], lv denied 81 N.Y.2d 767, 594 N.Y.S.2d 730, 610 N.E.2d 403 [1992]).  Finally, his guilty plea also foreclosed “his right to challenge on appeal any alleged trial errors,” including what he contends was the erroneous admission of certain video footage into evidence (People v. Green, 75 N.Y.2d 902, 904–905, 554 N.Y.S.2d 821, 553 N.E.2d 1331 [1990], cert denied 498 U.S. 860, 111 S.Ct. 165, 112 L.Ed.2d 130 [1990];  see People v. Campbell, 73 N.Y.2d 481, 486, 541 N.Y.S.2d 756, 539 N.E.2d 584 [1989];  People v. Mercer, 81 A.D.3d 1159, 1160, 917 N.Y.S.2d 397 [2011], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012]).

ORDERED that the judgment is affirmed, and matter remitted to the Supreme Court for further proceedings pursuant to CPL 460.50(5).

FOOTNOTES

1.   Upon defendant's motion, this Court stayed execution of the judgment of conviction pending appeal and fixed bail (see CPL 460.50[1]).

Egan Jr., J.P.

Lynch, Clark, Pritzker and Colangelo, JJ., concur.