| People v Saylor |
| 2015 NY Slip Op 07301 [132 AD3d 1018] |
| October 8, 2015 |
| Appellate Division, Third Department |
[*1](October 8, 2015)
| The People of the State of New York,Respondent, v Karen R. Saylor, Appellant. |
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Teresi, J.), renderedFebruary 5, 2013 in Albany County, convicting defendant upon her plea of guilty of thecrime of attempted burglary in the second degree.
Pursuant to a negotiated agreement that satisfied charges stemming from sixresidential burglaries, defendant waived indictment and entered a plea of guilty toattempted burglary in the second degree as charged in a superior court information.Defendant also waived her right to appeal and signed a written appeal waiver in opencourt and was sentenced, in accordance with the agreement, to a term of five years inprison to be followed by three years of postrelease supervision. Defendant nowappeals.
Defendant argues that her counsel was ineffective in that, among other deficiencies,he failed to investigate the facts or develop the record to establish defendant's level ofintoxication from drugs or alcohol at the time that she committed these burglaries.Defendant did not preserve these claims by making a postallocution motion (see People v Lord, 128 AD3d1277, 1278 [2015]), and they are precluded by her unchallenged appeal waiver"except insofar as [they] could be construed to have impacted upon the voluntariness of[her] plea" (People v Glynn,73 AD3d 1290, 1291 [2010]). Moreover, the claimed deficiencies concern mattersoutside the record that are properly the subject of a CPL article 440 motion (see People v Goldston, 126AD3d 1175, 1178 [2015]). In any event, a review of counsel's performance reflectsthat counsel negotiated a favorable plea agreement that avoided consecutive sentencesfor six separate burglaries, and "nothing in the record casts doubt on the apparenteffectiveness of counsel" (People v Wares, 124 AD3d 1079, 1080 [2015], lvdenied 25 NY3d 993 [2015]; see People v Eveland, 42 AD3d 755, 756 [2007], lvdenied 9 NY3d 961 [2007]). Further, defendant has not demonstrated "the absenceof strategic or other legitimate explanations" for counsel's decision to forgo an omnibusmotion seeking suppression of her confession to police in favor of the advantageous pleaagreement (People v Benevento, 91 NY2d 708, 712 [1998] [internal quotationmarks and citation omitted]).[FN*]
Lahtinen, Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:While counsel wasobligated to file a notice of appeal upon defendant's timely request, we granteddefendant's pro se motion pursuant to CPL 460.30 for an extension of time to take thisappeal and accepted her untimely notice of appeal. Consequently, counsel's omission didnot cause defendant to lose the right to appeal (see People v Syville, 15 NY3d 391, 397 [2010]). Further,the proper recourse where counsel fails to file a notice of appeal is an application for awrit of error coram nobis (see id. at 400-401; People v Pecararo, 83 AD3d 1284, 1287 [2011], lvdenied 17 NY3d 820 [2011]).