| People v Gumbs |
| 2020 NY Slip Op 02203 [182 AD3d 701] |
| April 9, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Anton C. Gumbs, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (Spencer E. Lane of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered November 14, 2016, convicting defendant upon his plea of guiltyof the crime of robbery in the first degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to robbery in thefirst degree and waived his right to appeal. Thereafter, defendant was sentenced, as asecond felony offender, to the agreed-upon prison term of 15 years to be followed by fiveyears of postrelease supervision. Consistent with the terms of the plea agreement, CountyCourt ordered the 15-year prison term to run concurrently to a prison term of 18 yearsthat was imposed a few days earlier in Albany County for defendant's unrelatedconviction of robbery in the first degree. Defendant appeals.
We affirm. Defendant validly waived his right to appeal. He was advised at theoutset of the plea proceeding that the waiver of his right to appeal was a condition of theplea agreement, and defendant indicated his understanding of this condition and that hehad no questions (see People vCannelli, 173 AD3d 1567, 1567-1568 [2019]; People v Vanalst, 171 AD3d1349, 1350 [2019], lv denied 33 NY3d 1109 [2019]; People v Cherry, 166 AD3d1220, 1221 [2018]). During the plea colloquy, County Court distinguished the rightto appeal as separate and distinct from the other trial-related rights automatically forfeitedby a guilty plea (see People vLopez, 6 NY3d 248, 256-257 [2006]; People v Danielson, 170 AD3d 1430, 1431 [2019], lvdenied 33 NY3d 1030 [2019], cert denied 589 US &mdash, 140 S Ct 486[2019]; People v Tucker,164 AD3d 948, 949 [2018]). The record further reflects that defendant signed awritten appeal waiver—in which defendant indicated that he understood that hewas giving up his right to appeal from, among other things, his guilty plea andsentence—in open court after conferring with counsel and discussing its contents.Accordingly, defendant knowingly, voluntarily and intelligently waived his right toappeal from the conviction and sentence (see People v Sanders, 25 NY3d 337, 341 [2015];People v Lopez, 6 NY3d at 256; People v Cherry, 166 AD3d at 1221).The valid appeal waiver precludes our review of defendant's claim that the agreed-uponsentence imposed was harsh and excessive (see People v Lopez, 6 NY3d at 256;People v Tucker, 164 AD3d at 949-950).
Defendant's challenge to the voluntariness of his guilty plea survives his appealwaiver (see People v Bond,146 AD3d 1155, 1156 [2017], lv denied 29 NY3d 1076 [2017]; People v Giammichele, 144AD3d 1320, 1320 [2016], lv denied 28 NY3d 1184 [2017]), but isunpreserved for our review absent evidence of an appropriate postallocution motion (see People v Pastor, 28 NY3d1089, 1090 [2016]; Peoplev Small, 166 AD3d 1237, 1238 [2018]; People v Caraballo, 208 AD2d413, 413 [1994], lv denied 84 NY2d 1010 [1994]).[FN*] Further, defendant did not make anystatements during the plea colloquy or at sentencing that cast doubt upon his guilt orotherwise called into question the voluntariness of his plea so as to trigger the narrowexception to the preservation requirement or obligate County Court to inquire whetherdefendant was aware of a potential affirmative defense (see People v Pastor, 28NY3d at 1090-1091; People vQuell, 166 AD3d 1388, 1389 [2018], lv denied 32 NY3d 1208 [2019];People v Johnson, 54 AD3d1133, 1133 [2008]; compare People v DeJesus, 144 AD3d 1564, 1565 [2016];People v Peterson, 124AD3d 993, 993-994 [2015]; People v McEaddy, 20 AD3d 585, 585-586 [2005];People v Waddell, 66 AD2d 807, 807 [1978]).
Defendant noted his mental health issues in a pro se letter to County Court, which thecourt appropriately declined to review because defendant was represented by counsel(see People v Rodriguez, 95 NY2d 497, 501-502 [2000]; People v Martin, 125 AD3d1054, 1054-1055 [2015], lv denied 26 NY3d 932 [2015]). Defendant laterraised those issues at sentencing, at which time the court noted that such information wasin the presentence investigation report. In response to a question, defendant indicated thathe was not denying that he was guilty of the crime, but simply asked the court to take hismental condition into consideration in the disposition. Thus, the claims regarding hismental condition do not appear related to arguments that his plea or appeal waiver wereunknowing, involuntary or unintelligent; rather they pertain to his precluded argumentthat the agreed-upon sentence was harsh and excessive.
Defendant's argument that he was denied the effective assistance of counsel isprecluded by his valid appeal waiver except insofar as the alleged ineffectiveness couldbe construed to have impacted upon the voluntariness of his plea (see People v Taft, 169 AD3d1266, 1267 [2019], lv denied 33 NY3d 1074 [2019]; People v Jeske, 55 AD3d1057, 1058 [2008], lv denied 11 NY3d 898 [2008]), and, to that extent, theabsence of an appropriate postallocution motion renders the matter unpreserved (see People v Johnson, 170AD3d 1274, 1275 [2019]; People v Dickerson, 168 AD3d 1194, 1194-1195 [2019];People v Muller, 166 AD3d1240, 1241 [2018]). To the extent that defendant alleges that counsel failed topromptly explain the terms of the plea agreement with him and adequately pursuealternative sentencing avenues given defendant's mental health needs, these claimsimplicate matters outside of the record and, therefore, are more properly the subject of aCPL article 440 motion (seePeople v Snare, 174 AD3d 1222, 1223 [2019], lv denied 34 NY3d 984[2019]; People v Muller,159 AD3d 1232, 1233 [2018]; People v Brown, 115 AD3d 1115, 1116 [2014], lvdenied 24 NY3d 959 [2014]).
Clark, J.P., Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent thatdefendant challenges the factual sufficiency of his plea allocution, this claim is precludedby his valid waiver of the right to appeal (see People v Huntley, 177 AD3d 1034, 1035 [2019], lvdenied 34 NY3d 1129 [2020]; People v Hummel-Parker, 171 AD3d 1397, 1398 [2019];People v Dorsey, 170 AD3d1325, 1325-1326 [2019], lv denied 33 NY3d 1068 [2019]).