| People v Cantey |
| 2018 NY Slip Op 03774 [161 AD3d 1449] |
| May 24, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Andre Cantey, Also Known as Rah,Appellant. |
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered February 6,2015 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the third degree.
After defendant was indicted on one count of criminal sale of a controlled substance in thethird degree, the People offered to permit defendant to plead guilty to the charged crime inexchange for a prison term of six years followed by three years of postrelease supervision.Defendant countered—proposing a prison term of five years—and the matter wasadjourned. When the parties reconvened, Supreme Court was unwilling to impose a five-yearprison term and reiterated the People's original offer; defendant indicated that he wanted to pleadguilty and wished to proceed pro se—following which the matter again was adjourned.Approximately two weeks later, defendant returned to court with newly assigned counsel, atwhich time Supreme Court indicated that the plea agreement had been modified to the extent thatdefendant would be sentenced to a prison term of no less than five years and no more than sixyears—followed by three years of postrelease supervision—said sentence to beserved consecutively to another sentence previously imposed. With that understanding, defendantpleaded guilty as charged and the matter was adjourned for sentencing.
Prior to sentencing, defendant filed a pro se motion to withdraw his plea, and the matter[*2]was adjourned so that defendant, who recently had beenincarcerated in state prison upon a conviction in Rensselaer County, could be produced. Whenthe parties next appeared in court, defendant expressed dissatisfaction with his two previouslyassigned attorneys and uncertainty as to whether he wished to proceed with his motion towithdraw his plea, prompting Supreme Court to again adjourn sentencing. Thereafter, defendantwas appointed new counsel—the third attorney assigned to him in this matter—andsentencing was further adjourned to permit counsel an opportunity to file a formal motion towithdraw defendant's plea.
When the parties finally returned for sentencing, defendant informed Supreme Court that hewas "withdrawing that motion" and that he would "find another way" to address his concerns. Anextensive colloquy with Supreme Court ensued, during the course of which defendant reiteratedthat he neither wished to work with any of the attorneys who had been assigned to represent himnor desired to proceed with his pro se motion to withdraw his plea, stating, "I'm good,man. . . . Give me my time and let me go." Defendant thereafter was sentenced as asecond felony offender to a prison term of six years followed by three years of postreleasesupervision. This appeal ensued.
We affirm. "Although defendant's challenge to the voluntariness of his plea survives [even a]valid appeal waiver, this issue is unpreserved for our review given that he withdrew his [pro se]motion to withdraw his guilty plea at sentencing" (People v Smith, 155 AD3d 1244, 1245 [2017] [internal quotationmarks and citation omitted]; see Peoplev Phipps, 127 AD3d 1500, 1501 [2015], lv denied 26 NY3d 970 [2015]; People v Jones, 114 AD3d 1080,1081 [2014], lv denied 24 NY3d 961 [2014]; People v Terenzi, 57 AD3d 1228, 1229 [2008], lv denied 12NY3d 822 [2009]).[FN*]We further find that the narrow exception to the preservation requirement was not triggered here(see People v Smith, 155 AD3d at 1245; People v Jones, 114 AD3d at 1081).
Defendant's ineffective assistance of counsel claim, which is largely premised upon hisassertion that one or more of the attorneys assigned to represent him failed to explore viabledefenses and/or offered him erroneous advice with regard to sentencing, implicates mattersoutside of the record and, as such, is more properly considered in the context of a CPL article 440motion (see People v Pringle, 155AD3d 1085, 1086 [2017]; People vBreault, 150 AD3d 1548, 1549 [2017]). The balance of defendant's ineffectiveassistance of counsel claim—to the extent that it impacts the voluntariness of hisplea—is similarly unpreserved (see People v Smith, 155 AD3d at 1246; Peoplev Phipps, 127 AD3d at 1501-1502; People v Jones, 114 AD3d at 1081). Defendant'sremaining contentions, to the extent not specifically addressed, have been examined and found tobe lacking in merit.
McCarthy, J.P., Devine, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Our conclusion in this regard isunaffected by Supreme Court's purported denial of defendant's motion to withdraw his guiltyplea—a ruling undertaken after defendant indicated that he was withdrawing such motion.