| People v Sylvan |
| 2013 NY Slip Op 04052 [107 AD3d 1044] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ColbySylvan, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered May 16, 2011, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the first degree.
Following jury selection, and in satisfaction of an eight-count indictment, defendantpleaded guilty to attempted robbery in the first degree, waived his right to appeal hisconviction and sentence and thereafter was sentenced, as a second felony offender, to 13years in prison followed by five years of postrelease supervision. Defendant now appealscontending, among other things, that the victims' pretrial identification of him shouldhave been suppressed as unduly suggestive.
Initially, to the extent that defendant's brief may be read as challenging the validity ofhis waiver of the right to appeal, we find defendant's argument to be unpersuasive. Theplea colloquy reflects that County Court explained the significance of the appeal waiverto defendant, who professed his understanding thereof and thereafter executed a writtenwaiver of the right to appeal. Under such circumstances, we find defendant's waiver to beknowing, intelligent and voluntary (see People v Carbone, 101 AD3d 1232, 1233 [2012]).
Defendant's remaining arguments do not warrant extended discussion. The validwaiver [*2]of appeal precludes defendant's challenge toCounty Court's denial of his motion to suppress certain identification testimony (see People v Mattison, 94AD3d 1157, 1158 [2012]; People v Spruill, 90 AD3d 1242, 1243 [2011], lvdenied 18 NY3d 998 [2012]; People v Moreno, 86 AD3d 863, 864 [2011], lvdenied 17 NY3d 954 [2011]), as well as his claim that the sentence imposed washarsh and excessive (see People v Mattison, 94 AD3d at 1158; People vMoreno, 86 AD3d at 864). Any argument regarding the factual sufficiency of theunderlying plea also is foreclosed by defendant's valid waiver and, further, isunpreserved for our review absent evidence that defendant moved to withdraw his pleaor vacate the judgment of conviction (see People v Leone, 101 AD3d 1352, 1352 [2012], lvdenied 21 NY3d 913 [2013]; People v Benson, 100 AD3d 1108, 1108 [2012]). Althoughdefendant's challenge to the voluntariness of his plea survives the foregoing waiver, it,too, is unpreserved for our review in the absence of an appropriate postallocution motion(see People v Revette, 102AD3d 1065, 1065-1066 [2013]; People v Martinez-Velazquez, 89 AD3d 1318, 1319[2011]). Further, the narrow exception to the preservation requirement was not triggeredhere, "as nothing in the plea allocution cast doubt on his guilt or negated an essentialelement of the crime" (People vWilliams, 101 AD3d 1174, 1174 [2012]; see People v McGowan, 98 AD3d 1192, 1193 [2012]).
Finally, although defendant now contends that counsel pressured him to plead guiltyand failed to properly investigate his case, explore potential defenses or adequatelyconfer with him, such claims implicate matters outside the record and, as such, are moreproperly considered in the context of a CPL article 440 motion (see People vCarbone, 101 AD3d at 1234-1235; People v Terpening, 79 AD3d 1367, 1368 [2010], lvdenied 16 NY3d 837 [2011]).[FN*]The balance of defendant's ineffective assistance of counsel claim—to the extentthat it impacts upon the voluntariness of his plea—survives defendant's otherwisevalid waiver of the right to appeal but, again, in the absence of an appropriate motion, isunpreserved for our review (seePeople v Walton, 101 AD3d 1489, 1490 [2012], lv denied 20 NY3d1105 [2013]; People vBoone, 101 AD3d 1358, 1359 [2012], lv denied 20 NY3d 1096 [2013]).We have examined defendant's remaining contentions and find them to be lacking inmerit.
Peters, P.J., Rose and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant expresslyacknowledged—prior to pleading guilty—that he had discussed theimmigration consequences of such a plea with counsel. To the extent that defendant nowdeems that discussion to have been inadequate, this argument also is best addressed in amotion pursuant to CPL article 440 (see People v Drammeh, 100 AD3d 650, 651 [2012], lvdenied 20 NY3d 1098 [2013]; People v Reynoso, 88 AD3d 1162, 1162-1163 [2011]).