| People v Jackson |
| 2018 NY Slip Op 02215 [159 AD3d 1276] |
| March 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v RogersJackson, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered December 4, 2015, convicting defendant upon his plea of guilty of thecrime of arson in the second degree.
Police responded to a report of a domestic dispute and found defendant barricaded, with hislong-term girlfriend and her one-year-old daughter, inside a bedroom in his apartment, which hehad set on fire. Police forced their way into the apartment, rescued the victims and arresteddefendant. Defendant was later charged in a 12-count indictment with two counts of attemptedmurder in the second degree and other crimes stemming from this incident. In satisfaction of allcharges, defendant pleaded guilty to arson in the second degree as charged in count 3 of theindictment pursuant to a plea agreement that included an oral and signed written waiver ofappeal. Consistent with the terms of that agreement, County Court sentenced defendant, as anadmitted second felony offender, to a prison term of 13 years to be followed by five years ofpostrelease supervision and issued orders of protection. Defendant appeals.
We affirm. While defendant's challenge to the voluntariness of his plea survives his valid,unchallenged waiver of appeal, this issue is nonetheless unpreserved for our review absentevidence of an appropriate postallocution motion to withdraw his guilty plea on this ground,despite an opportunity to do so prior to the imposition of sentence (see CPL 220.60 [3];People v Williams, 27 NY3d212, 219-220 [2016]; People v Hansen, 95 NY2d 227, 231 n 2 [2000]). [*2]Moreover, the narrow exception to the preservation requirementwas not implicated, as defendant did not make any statements during his plea allocution or atsentencing that were inconsistent with his guilt or otherwise called into question thevoluntariness of his plea (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Peterson, 147 AD3d1148, 1149 [2017]; People vGood, 83 AD3d 1124, 1125-1126 [2011], lv denied 17 NY3d 816 [2011]; cf. People v Gresham, 151 AD3d1175, 1177-1178 [2017]; People vLaflower, 145 AD3d 1341, 1342-1343 [2016]). Defendant's assertions during hispresentencing interview with the Probation Department that he did not recall the incidentcontradicted his sworn plea allocution, and his claim that he had been informed that he wassuffering from "drug-induced psychosis" are not supported by any medical evidence ordocumentation in the record.[FN*] Under these circumstances, County Court wasnot obligated to inquire into defendant's competency or to sua sponte offer him an opportunity towithdraw his guilty plea (see CPL 730.30 [1]; People v Hopper, 153 AD3d 1045, 1047 [2017], lv denied30 NY3d 1061 [2017]; People vDuffy, 126 AD3d 1142, 1142 [2015]). As defendant raised no objections to proceedingat sentencing, there was no duty of further inquiry (see People v Good, 83 AD3d at1125-1126; cf. People v Gresham, 151 AD3d at 1177-1178).
To the extent that defendant's ineffective assistance of counsel claim impacts thevoluntariness of his plea, it also survives his appeal waiver but is likewise unpreserved for ourreview (see People v Peterson, 147 AD3d at 1149). Were we to address this claim, wewould find that defendant received meaningful representation, as counsel negotiated anadvantageous plea deal that greatly reduced his sentencing exposure and nothing in the recordcasts doubt on trial counsel's effectiveness (see People v Chaires, 150 AD3d 1326, 1327 [2017], lvdenied 29 NY3d 1124 [2017]). Any claims related to matters outside of the record on appeal,such as what counsel advised defendant regarding moving to withdraw his plea, are moreproperly addressed in a CPL article 440 motion (see People v Pringle, 155 AD3d 1085, 1086 [2017]; People vChaires, 150 AD3d at 1327-1328).
Garry, P.J., Egan Jr., Lynch and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:While defendant filed a notice ofintent to proffer psychiatric testimony, he ultimately pleaded guilty after indicating during theplea allocation that he understood that he was waiving all defenses and that he had discussed theplea terms with defense counsel. Were we to address this claim, we would find that "CountyCourt advised him during the plea allocution that he would be waiving, among other rights, hisright to present defenses, which he indicated he understood, and he acknowledged that he waspleading guilty because he was, in fact, guilty, thereby establishing the knowing, voluntary andintelligent nature of his plea" (People vDubois, 150 AD3d 1562, 1563 [2017]; see People v Haffiz, 19 NY3d 883, 884 [2012]).