| People v Alexander |
| 2019 NY Slip Op 05595 [174 AD3d 1068] |
| July 11, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shannon Alexander, Appellant. |
Kathy Manley, Selkirk, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered April 28, 2017, convicting defendant upon his plea of guilty of the crime of rape in thesecond degree.
In satisfaction of a 10-count indictment charging him with various sex-related offenses,defendant pleaded guilty to rape in the second degree and waived his right to appeal. Consistentwith the terms of the plea agreement, County Court sentenced defendant, as a second felonyoffender, to a prison term of 3
We affirm. Initially, we find defendant's waiver of the right to appeal to be invalid. Inaddition to failing to inform defendant that the right to appeal was separate and distinct from theother rights that he was forfeiting by pleading guilty,[FN*] the record reflects that County Court did notadequately explain the nature of the waiver or ascertain that defendant understood its manyramifications (see People v Lopez, 6NY3d 248, 256 [2006]; People vLatifi, 171 AD3d 1351, 1351 [2019]). "Additionally, although defendant signed awritten waiver of appeal, County Court did not verify that defendant had read and understood thewritten appeal waiver or discussed it with counsel" (People v Cook, 171 AD3d 1361, 1361 [2019] [internal quotationmarks and citations omitted]; see Peoplev Miller, 166 AD3d 1385, 1386 [2018], lv denied 32 NY3d 1207 [2019]).
As to defendant's claim that his plea was involuntary, such contention is unpreserved for ourreview in the absence of an appropriate postallocution motion (see People v Conceicao, 26 NY3d375, 381-382 [2015]; People vLamb, 162 AD3d 1395, 1396 [2018], lv denied 32 NY3d 1112 [2018]), and thenarrow exception to the preservation rule is inapplicable as defendant did not make anystatements during the plea colloquy that cast doubt upon his guilt, negated an element of thecrime or called into question the voluntariness of his plea (see People v Lopez, 71 NY2d662, 665-666 [1988]; People vMais, 168 AD3d 1142, 1143 [2019]). To the extent that defendant's claim that he wasdenied the effective assistance of counsel impacts the voluntariness of his plea, it is similarlyunpreserved due to the lack of a postallocution motion (see People v Allevato, 170 AD3d 1264, 1265 [2019]). Inasmuch asdefendant contends that counsel failed to investigate the case against him and that an allegedinconsistent statement was included in discovery material, such claims are premised upon mattersthat are outside of the record on appeal and, as such, are more appropriately considered in amotion pursuant to CPL article 440 (seePeople v Miller, 166 AD3d 812, 813 [2018], lv denied 33 NY3d 951 [2019]; People v Torres, 165 AD3d 1325,1326 [2018], lv denied 32 NY3d 1210 [2019]).
Garry, P.J., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:During the plea colloquy, CountyCourt only questioned defendant whether "separate and apart [he] and [his counsel] ha[d]discussed [his] right to appeal" and failed to explain to defendant that the right toappeal—and not his conversation with counsel about that right—was separate anddistinct from the other trial-related rights that he was forfeiting by pleading guilty.