| People v Gamble |
| 2021 NY Slip Op 00053 [190 AD3d 1022] |
| January 7, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Lamont Gamble, Also Known as Boogs, L Boogs and L Boogie,Appellant. |
Erin C. Morigerato, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Clark, J. Appeals (1) from a judgment of the County Court of Schenectady County (Hogan,J.), rendered March 29, 2018, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree, and (2) from a judgment of said court,rendered July 26, 2019, which resentenced defendant.
Defendant was charged by indictment with criminal sale of a controlled substance in the thirddegree (three counts) and criminal possession of a controlled substance in the third degree (threecounts) stemming from the sale of heroin on three occasions. In satisfaction of those charges,defendant pleaded guilty to one count of criminal sale of a controlled substance in the thirddegree in exchange for a promised prison sentence of either five or six years to be followed bythree years of postrelease supervision (hereinafter PRS) and executed a waiver of appeal.Consistent with the plea agreement, County Court imposed a prison sentence of six years to befollowed by three years of PRS, to be served concurrently with a four-year prison sentencerecently imposed in Clinton County also for the sale of a controlled substance.[FN1] Defendant appeals from thatjudgment of conviction. After being advised that the maximum period of PRS for this offense asa first time felony offender was two years, County Court resentenced defendant to six years inprison to be followed by two years of PRS, again to run concurrently with the Clinton Countysentence. Defendant also appeals from the judgment rendered upon resentencing.
We affirm.[FN2]Initially, we agree with defendant that the record fails to demonstrate that his waiver of appealwas knowing, voluntary and intelligent (see People v Thomas, 34 NY3d 545, 563 [2019]; People v Lopez, 6 NY3d 248, 256[2006]). "[I]n determining whether the record demonstrates that a defendant understood anappeal waiver's consequences, proper considerations include the defendant's consultation withcounsel and on-the-record acknowledgments of understanding, a written appeal waiver thatsupplements or clarifies the court's oral advice and the defendant's experience with the criminaljustice system" (People v Thomas, 34 NY3d at 560; see People v Sanders, 25 NY3d 337, 341-342 [2015]). "[O]fparamount importance is the trial court's responsibility to ensure that each defendant's fullappreciation of the consequences and understanding of the terms and conditions of the plea andappeal waiver are apparent on the face of the record" (People v Thomas, 34 NY3d at 560[internal quotation marks and citation omitted]; see People v Seaberg, 74 NY2d 1, 11[1989]).
During a limited oral colloquy, County Court merely advised defendant that pleadingdefendants ordinarily have a right to appeal to a higher court but, as part of the plea agreement,he was being required to waive his right to appeal. Although defendant was afforded time toreview the written waiver of appeal with counsel and signed it, indicating that he had [*2]no questions, the court failed to ascertain whether defendant hadread the waiver, understood it or had ample time to discuss it with counsel (see People v Brunson, 185 AD3d1300, 1300 [2020], lv denied 36 NY3d 928 [2020]; People v Brito, 184 AD3d 900,900-901 [2020]; compare People v Thomas, 34 NY3d at 564). Moreover, neither thebrief oral advisement nor the written waiver apprised defendant that certain fundamentalappellate issues survived the waiver. Indeed, the written waiver recited that the plea would "markthe end of the case," suggesting an absolute bar to taking a direct appeal encompassing evennonwaivable issues, and was overly broad by mischaracterizing the rights waived asencompassing all state and federal appeals and postconviction relief (see People vThomas, 34 NY3d at 565-566; People v Seaberg, 74 NY2d at 10; cf. People vBrunson, 185 AD3d at 1300 n; People v Brito, 184 AD3d at 900; People v Martin, 179 AD3d 1385,1386 [2020]).
Defendant's challenge to the voluntariness of his plea is unpreserved for our review absentevidence of an appropriate postallocution motion, despite ample time to make such a motionprior to sentencing and resentencing (seePeople v Williams, 27 NY3d 212, 214, 219-221 [2016]; People v Conceicao, 26 NY3d375, 381 [2015]; People vEdwards, 181 AD3d 1054, 1055 [2020], lv denied 35 NY3d 1026 [2020]; seealso CPL 220.60 [3]). Moreover, defendant did not make any statements during the pleacolloquy that were inconsistent with his guilt, negated an essential element of the charged crimeor otherwise called into question the voluntariness of his plea and, therefore, the narrowexception to the preservation requirement does not apply (see People v Williams, 27NY3d at 214, 220-222; People v Lopez, 71 NY2d 662, 666 [1988]). Contrary todefendant's claim, he was aware from the recitation of the plea terms that a period of PRS wouldbe imposed, and agreed to those terms prior to pleading guilty (see People v Murray, 15 NY3d725, 726 [2010]; cf. People vTurner, 24 NY3d 254, 258-259 [2014]; People v Catu, 4 NY3d 242, 244-245 [2005]). Further, after anincorrect PRS term was initially imposed in 2018, defendant proceeded with resentencing in2019 without raising any objection to PRS or seeking to withdraw his guilty plea, although givenample time to do so, thereby failing to preserve this claim as required under the circumstances(see People v Crowder, 24 NY3d1134, 1136 [2015]; People vAllen, 165 AD3d 1348, 1348 [2018]; see also People v Conceicao, 26 NY3d at381-382; compare People v Williams, 27 NY3d at 219-221; People v Louree, 8 NY3d 541, 546[2007]).
Defendant's claims that he received the ineffective assistance of counsel, to the extent thatthey concern matters on the record, are unpreserved, as defendant never moved to withdraw hisguilty plea prior to sentencing or resentencing (see People v Sydlosky, 181 AD3d 1094, 1095 [2020]; People v Shabazz, 174 AD3d1223, 1225 [2019]). Moreover, counsel's [*3]mistakeregarding the permissible period of PRS was corrected upon resentencing, obviating anyprejudice (see Strickland v Washington, 466 US 668, 687 [1984]; People v McDonald, 1 NY3d 109,113-114 [2003]; People v Henry, 95 NY2d 563, 566 [2000]). Defendant's remainingclaims regarding, among other things, what counsel advised him, investigated and researchedconcern matters outside of the record that are more properly the subject of a motion to vacatepursuant to CPL article 440 (see Peoplev Mastro, 174 AD3d 1232, 1233 [2019]; People v Taylor, 135 AD3d 1237, 1238 [2016], lv denied27 NY3d 1075 [2016]).
Given that defendant was resentenced in 2019 to the correct period of PRS, superseding the2018 sentence,[FN3]defendant's claims addressed to the 2018 sentence are moot (see People v Clayton, 38 AD3d 1131, 1131-1132 [2007], lvdenied 9 NY3d 841 [2007]). As for defendant's claim that the resentence imposed is harshand excessive, we discern no extraordinary circumstances or abuse of discretion warranting amodification thereof, particularly given that the plea agreement resolved charges from multipledrug sales and the sentence was imposed concurrently with a sentence imposed on another drugsale conviction (see People v Latifi,171 AD3d 1351, 1351 [2019]).
Lynch, J.P., Mulvey, Pritzker and Colangelo, JJ., concur. Ordered that the judgments areaffirmed.
Footnote 1:The Clinton County convictionwas subsequently affirmed on appeal (People v Gamble, 177 AD3d 1042 [2019], lv denied 34NY3d 1128 [2020]).
Footnote 2:We reject the People's contentionthat defendant's supplemental brief filed May 29, 2020 with regard to the judgment uponresentencing was untimely. By order of this Court dated March 12, 2020, the appeals wereconsolidated and the deadline for defendant to file a supplemental record and brief was extendedto May 12, 2020. However, pursuant to the March 17, 2020 order of the Presiding Justice,perfection, filing and other deadlines were suspended. The Presiding Justice's May 22, 2020order lifting the suspension of deadlines for the perfection of appeals extended defendant's timeto file a supplemental brief until August 5, 2020.
Footnote 3:The maximum sentence for thecrime to which defendant pleaded guilty, a class B felony drug offense, is nine years to befollowed by two years of PRS (see Penal Law §§ 70.45 [2] [b]; 70.70[2] [a] [i]; 220.39).