People v Clapper

2015 NY Slip Op 08465 [133 AD3d 1037]

November 19, 2015

Appellate Division, Third Department

As corrected through Wednesday, December 30, 2015

[*1]

The People of the State of New York, Respondent, vScott A. Clapper, Appellant.

Barrett D. Mack, Albany, for appellant, and appellant pro se.

James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.

Lynch, J. Appeal from a judgment of the County Court of Schoharie County (BartlettIII, J.), rendered January 8, 2014, convicting defendant upon his plea of guilty of thecrimes of burglary in the second degree and burglary in the third degree (threecounts).

Following a string of burglaries in 2012, defendant was charged in a three-countindictment with burglary in the second degree and other crimes, and in a superior courtinformation with four counts of burglary in the third degree. Pursuant to a negotiatedcombined disposition, defendant entered a guilty plea to burglary in the second degreeand three counts of burglary in the third degree, agreed to pay restitution and waived hisright to appeal. Consistent with the agreement, defendant was sentenced for the burglaryin the second degree conviction to 31/2 years in prison followed by fiveyears of postrelease supervision, and to concurrent prison terms of 2 to 6 years on each ofthe burglary in the third degree convictions, the latter sentences to be servedconsecutively to the former. Defendant now appeals.^[FN*]

[*2] Defendant's challenge to his sentence as harsh andexcessive is precluded by his knowing, voluntary and intelligent waiver of appeal (see People v Lopez, 6 NY3d248, 256 [2006]; see alsoPeople v Pacherille, 25 NY3d 1021, 1023-1024 [2015]; People vCallahan, 80 NY2d 273, 280 [1992]). During the plea allocution, County Courtexplained the nature of the right being waived and made clear that it was separate fromthe trial-related rights automatically forfeited upon a guilty plea, and ascertained thatdefendant had discussed it with counsel and that he understood its meaning (see People v Sanders, 25 NY3d337, 340-341 [2015]; People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Ramos, 7 NY3d737, 738 [2006]; cf. Peoplev Elmer, 19 NY3d 501, 510 [2012]). He also signed a written appeal waiver inopen court. Given defendant's valid appeal waiver, his challenge to the negotiatedsentence as harsh and excessive is foreclosed (see People v Smalls, 128 AD3d 1281, 1282 [2015]).

With regard to the claims raised in defendant's pro se brief, his contention that he didnot receive the effective assistance of counsel is precluded by his appeal waiver except tothe extent that it impacts upon the voluntariness of his plea, but it is unpreserved for ourreview as he failed to make an appropriate postallocution motion (see People v Kormos, 126AD3d 1039, 1040 [2015]). Moreover, defendant's claims concern what counseladvised or promised him and the adequacy of his preparation and, as such, implicatematters outside the record before us, which are more appropriately considered in thecontext of a CPL article 440 motion (see People v Toback, 125 AD3d 1060, 1061-1062 [2015],lv denied 25 NY3d 993 [2015]; People v Guyette, 121 AD3d 1430, 1431 [2014]).

Finally, defendant claims that defense counsel had a conflict of interest based uponthe Trial Judge's disclosure at arraignment that he "play[s] golf with [defense counsel]periodically." Defense counsel thereafter stated on the record that "[defendant] indicatesthat that's acceptable" and no objections were raised. Defendant reiterated that he had noobjection prior to entering his guilty plea. As such, any issue regarding a potentialconflict was waived (see Peoplev Sanchez, 21 NY3d 216, 223 [2013]; People v Wright, 129 AD3d 1217, 1218 [2015]).Moreover, defendant has not demonstrated on this record that any potential conflict ofinterest arose or affected counsel's representation, or good cause for the appointment ofsubstitute counsel (see id.; People v Stevenson, 112 AD3d 989, 990 [2013], lvdenied 22 NY3d 1159 [2014]).

McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:Although the notice ofappeal contains an inaccurate description, in part, of the crimes to which defendantpleaded guilty, we will overlook that error and treat the notice as valid (see CPL460.10 [6]; People vSaunders, 127 AD3d 1420, 1421 n 1 [2015], lv denied 26 NY3d 935[2015]). Defendant also has an appeal pending from a burglary conviction inSchenectady County for which the sentence was imposed consecutively to the sentenceshere (People v Clapper, 133 AD3d 1036 [decided herewith]).