| People v Hughes |
| 2015 NY Slip Op 09318 [134 AD3d 1301] |
| December 17, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joshua R. Hughes, Appellant. |
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (A. Michael Gebo of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered March 22, 2013, convicting defendant upon his plea of guilty ofthe crime of burglary in the second degree.
Following jury selection, defendant entered an Alford plea to the sole countin an indictment charging burglary in the second degree and waived his right to appeal.Consistent with the plea agreement, County Court sentenced defendant, as a secondviolent felony offender, to a prison term of seven years with five years of postreleasesupervision. Defendant now appeals.
We affirm. Defendant's challenge to the waiver of appeal is belied by the record,which reflects that County Court made clear its "separate and distinct" nature, explainedthe right being waived and confirmed that defendant understood it and had no questions,prior to signing the written appeal waiver in court (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Jackson, 129AD3d 1342, 1342 [2015]). Contrary to his claims, County Court sufficientlyexplained the appellate rights that survive the waiver, and we find that defendant'swaiver of appellate rights was knowing, voluntary and intelligent (see id.; see also People v Sanders, 25NY3d 337, 340-341 [2015]).
While defendant's challenge to his Alford plea survives his appeal waiver tothe extent that it implicates the voluntariness of his plea, it is unpreserved as he failed tomake an appropriate postallocution motion, and the narrow exception to the preservationrule is inapplicable (see Peoplev Heidgen, 22 NY3d 981, 981-982 [2013]; People v Fallen, 106 AD3d[*2]1118, 1119 [2013], lv denied 22 NY3d 1156[2014]; People v Ture, 94AD3d 1163, 1164 [2012], lv denied 19 NY3d 968 [2012]).
Defendant alleges that he received the ineffective assistance of counsel due tocounsel's failure to conduct appropriate discovery. To the extent that this argumentsurvives his appeal waiver by implicating the voluntariness of his plea, however, itinvolves matters outside the record that must be raised in a CPL article 440 motion (see People v Brown, 125AD3d 1049, 1050 [2015]; People v Sylvan, 107 AD3d 1044, 1045-1046 [2013], lvdenied 22 NY3d 1141 [2014]). Defendant's remaining claims of ineffectiveassistance survive his appeal waiver to the extent that they implicate the voluntariness ofhis guilty plea, but are unpreserved given the absence of an appropriate postallocutionmotion (see People vJackson, 128 AD3d 1279, 1280 [2015], lv denied 26 NY3d 930[2015]).[FN*]Regardless, his contentions are belied by the plea colloquy, in which defendantconfirmed that he was satisfied with counsel's services and had adequate time to discussthe plea with him. Defendant's remaining claims similarly lack merit.
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:While defendant arguedat sentencing that his trial counsel had been ineffective in a prior action, that did notpreserve the present claim of ineffective assistance in this action.