PEOPLE v. SMITH (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Rensselaer County (Debra Young, J.), rendered January 18, 2024, convicting defendant upon his plea of guilty of attempted burglary in the third degree (two counts).

In satisfaction of numerous pending charges, defendant waived indictment and pleaded guilty to a superior court information charging him with two counts of attempted burglary in the third degree relating to his illegal entry into businesses in separate suites of an office building in the City of Troy, Rensselaer County, with the intent to commit petit larceny therein (see Penal Law §§ 110.00, 140.20, 155.25).  The plea agreement included a waiver of the right to appeal and contemplated that defendant would be sentenced, as a second felony offender, to consecutive prison terms of 11/212 to 3 years upon the convictions.  County Court later adjourned sentencing after defendant made statements during the presentence investigation and in open court reflecting that he was off his psychiatric medication at the time he entered into the building, only did so because he heard voices and thought his aunt was inside, and did not know why he decided to take items from the two businesses therein.  Upon his return to court, and after discussing the matter with counsel, defendant engaged in a further colloquy with County Court in which he reaffirmed that he had the requisite larcenous intent when he entered the businesses and again pleaded guilty.  County Court thereafter imposed the agreed-upon sentence.  Defendant appeals.

We affirm.  At the outset, defendant's appeal waiver is valid.  County Court described in detail during the plea colloquy as to how an appeal waiver was a component of the plea agreement, how defendant's right to appeal was separate and distinct from the trial-related rights he was forfeiting by pleading guilty and how certain appellate issues, some of which were specifically named, would survive the waiver.  Defendant acknowledged that he understood and was voluntarily waiving his right to appeal, then executed a detailed written waiver in open court after reviewing it with counsel.  We are satisfied from the foregoing that defendant waived his right to appeal in a knowing, intelligent and voluntary manner (see People v. Thomas, 34 N.Y.3d 545, 563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  People v. Martinez, 245 A.D.3d 1071, 1072, 246 N.Y.S.3d 830 [3d Dept 2026], lv denied 45 N.Y.3d 998, 259 N.Y.S.3d 438, 282 N.E.3d 165 [2026] ).  His further challenge to the agreed-upon sentence as unduly harsh or severe is precluded by that 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. Manning, 245 A.D.3d 1110, 1111, 250 N.Y.S.3d 288 [3d Dept 2026] ).

Defendant's further challenges to the voluntariness of his plea survive his appeal waiver, but are unpreserved given his apparent failure to raise them in a postallocution motion that he had ample time to make (see People v. Host, 248 A.D.3d 1505, 1506, 254 N.Y.S.3d 356 [3d Dept 2026];  People v. Saunders, 204 A.D.3d 1257, 1257, 164 N.Y.S.3d 897 [3d Dept 2022] ).  The record does not reveal that defendant made any statements during the plea proceeding that cast doubt upon his guilt or otherwise called the voluntariness of his plea into question so as to trigger the narrow exception to the preservation requirement, and his postplea statements do not implicate that exception (see People v. Rios, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2026 N.Y. Slip Op. 00963, *1–2, 2026 WL 466798 [2026];  People v. Host, 248 A.D.3d at 1505–1506, 254 N.Y.S.3d 356).  We would, in any event, reject his challenges were they properly before us.  Notwithstanding his prior mental health struggles, he confirmed during the plea colloquy that he understood the terms of the plea agreement and that nothing was impacting his ability to comprehend what was occurring, and the record affords no “reasonable basis upon which to believe that [he] was incapable of understanding the proceedings, incompetent or otherwise incapacitated to enter a knowing and voluntary plea or that a CPL article 730 competency hearing was warranted” (People v. Saunders, 204 A.D.3d at 1257, 164 N.Y.S.3d 897;  see People v. Host, 248 A.D.3d at 1506, 254 N.Y.S.3d 356;  People v. Mahood, 238 A.D.3d 1433, 1434–1435, 235 N.Y.S.3d 511 [3d Dept 2025], lv denied 44 N.Y.3d 983, 241 N.Y.S.3d 139, 267 N.E.3d 1207 [2025] ).  Moreover, as County Court conducted a further colloquy in the wake of defendant's postplea statements that resulted in his reaffirming that he had the requisite intent and was voluntarily pleading guilty to the charged offenses, the record provides him with no basis to complain in that regard (see People v. Newsome, 238 A.D.3d 1219, 1220, 233 N.Y.S.3d 200 [3d Dept 2025];  People v. Dunbar, 218 A.D.3d 931, 933, 193 N.Y.S.3d 397 [3d Dept 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023] ).

Finally, to the extent that defendant contends in his second supplemental brief that his plea was involuntary given his mental state at the time and alleged promises made by defense counsel regarding sentencing, such claims involve matters outside the record that are more properly the subject of a CPL article 440 motion (see People v. Stevens, 220 A.D.3d 984, 985 n, 198 N.Y.S.3d 245 [3d Dept 2023];  People v. Casolo, 142 A.D.3d 1247, 1248, 38 N.Y.S.3d 442 [3d Dept 2016], lv denied 28 N.Y.3d 1143, 74 N.E.3d 680 [2017] ).

ORDERED that the judgment is affirmed.

Ryba, J.

Garry, P.J., Fisher, Powers and Corcoran, JJ., concur.