| People v Benson |
| 2012 NY Slip Op 07338 [100 AD3d 1108] |
| November 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jason Benson,Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),entered May 19, 2011, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the third degree.
In full satisfaction of a four-count indictment and other pending charges, defendant waivedhis right to appeal, pleaded guilty to criminal sale of a controlled substance in the third degreeand thereafter was sentenced to the agreed-upon prison term of two years followed by two yearsof postrelease supervision. Defendant now appeals contending, among other things, that his pleawas involuntary.
We affirm. Initially, to the extent that defendant challenges his waiver of the right to appeal,we are satisfied—based upon our review of the plea colloquy and the written waiverexecuted by defendant—that defendant was both apprised of and clearly understood therights that he was forfeiting (see Peoplev Santana, 95 AD3d 1503, 1503 [2012]; People v Empey, 73 AD3d 1387, 1388 [2010], lv denied 15NY3d 804 [2010]). Accordingly, we find defendant's waiver to be knowing, intelligent andvoluntary.
As to the balance of defendant's claims, any assertion that his plea allocution was [*2]factually insufficient is foreclosed by his valid waiver of the right toappeal and, further, is unpreserved for our review as there is no indication on this record thatdefendant moved to withdraw his plea or vacate the underlying judgment of conviction (see People v Flake, 95 AD3d1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Richardson, 83 AD3d1290, 1291 [2011], lv denied 17 NY3d 821 [2011]). Although defendant's challengeto the voluntariness of his plea—including his assertion that the plea was induced by anunfulfilled promise that he would be admitted to a shock incarceration program—survivesthe appeal waiver (see People vRobinson, 86 AD3d 719, 720 [2011], lv denied 19 NY3d 966 [2012]; People v Williams, 84 AD3d1417, 1418 [2011], lv denied 17 NY3d 863 [2011]), defendant's arguments on thispoint are unpreserved absent evidence of an appropriate postallocution motion (see People v Taylor, 89 AD3d1143, 1143-1144 [2011]; People vPlanty, 85 AD3d 1317, 1317-1318 [2011], lv denied 17 NY3d 820 [2011]).Moreover, the narrow exception to the preservation requirement is inapplicable here, asdefendant did not make any statements during the course of the plea allocution that wereinconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v Board, 75 AD3d 833,833 [2010]; People v Glynn, 73AD3d 1290, 1291 [2010]). Were we to consider defendant's arguments, we would find themto be lacking in merit. Simply put, neither defendant's eligibility for a shock incarcerationprogram nor his admission thereto was a condition of his plea (see People v Williams, 84AD3d at 1418; People vVanguilder, 32 AD3d 1110, 1110 [2006], lv denied 7 NY3d 904[2006]),[FN*]and the record before us does not support defendant's claim of coercion (see People vRichardson, 83 AD3d at 1291).
With respect to defendant's ineffective assistance of counsel claim, to the extent that suchclaim impacts upon the voluntariness of defendant's plea, it survives the otherwise valid waiverof the right to appeal (see People vJimenez, 96 AD3d 1109, 1110 [2012]; People v Planty, 85 AD3d at 1318) but,absent an appropriate motion, is unpreserved for our review (see People v Small, 82 AD3d 1451, 1452 [2011], lv denied17 NY3d 801 [2011]; People vPeterkin, 77 AD3d 1017, 1017-1018 [2010]). Further, to the degree that defendantasserts that counsel failed to adequately pursue potential defenses or sentencing options, thisargument implicates matters outside the record—matters that are more appropriatelyconsidered in the context of a CPL article 440 motion (see People v Planty, 85 AD3d at1318; People v Davis, 84 AD3d1645, 1646 n [2011], lv denied 17 NY3d 815 [2011]).
Finally, defendant's valid waiver of the right to appeal both his conviction and sentence (cf. People v Maracle, 19 NY3d925 [2012]) precludes any claim that the sentence imposed was harsh and excessive (see People v Lopez, 97 AD3d 853,853-854 [2012], lv denied 19 NY3d 1027 [2012]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: We note in passing that althoughCounty Court indeed could recommend that defendant be admitted to such a program, "neitherCounty Court nor the People possess[ ] the authority to guarantee [defendant's] participationtherein" (People v Vanguilder, 32 AD3d at 1110-1111; see People ex rel. Dickerson v Unger,62 AD3d 1262, 1263 [2009], lv denied 12 NY3d 716 [2009]).