| People v Jones |
| 2021 NY Slip Op 06008 [199 AD3d 1069] |
| November 4, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Paul Jones, Appellant. |
Karen G. Leslie, Riverhead, for appellant.
Megan K. Galligan, District Attorney, Monticello (Rachel I. Kesten of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered March 29, 2019, convicting defendant upon his pleas of guilty of the crimes ofattempted assault in the first degree and conspiracy in the second degree.
In satisfaction of a 29-count indictment, defendant pleaded guilty to the reduced charge ofattempted assault in the first degree and purportedly waived his right to appeal. In satisfaction ofa second indictment and an unindicted charge related to an arrest for possession of cocaine,defendant also pleaded guilty to conspiracy in the second degree and agreed to waive his right toappeal. Defendant was sentenced to a prison term of 7
Initially, the People concede, and our review of the record confirms, that the waivers of theright to appeal are invalid as the language used at the colloquies and in the written appeal waiverswas overbroad and inaccurate with regard to the scope of such waivers (see People v Bisono, 36 NY3d1013, 1017-1018 [2020]; People vThomas, 34 NY3d 545, 566 [2019]; People v Barrales, 179 AD3d 1313, 1314-1315 [2020]). As such,defendant's challenge to the factual sufficiency of the plea allocution relating to the attemptedassault conviction and to the sentence imposed are not foreclosed (compare People v Gorman, 165 AD3d1349, 1349 [2018], lv denied 32 NY3d 1125 [2018]). Nevertheless, defendant'schallenge to the factual sufficiency of the allocution, as well as to the voluntariness of the plea,are unpreserved for our review as the record does not reflect that he made any appropriatepostallocution motion (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Avera, 192 AD3d 1382,1382-1383 [2021], lv denied 37 NY3d 953 [2021]; People v Favreau, 174 AD3d 1226, 1227 [2019], lv denied34 NY3d 980 [2019]). Furthermore, we are unpersuaded by defendant's contention that thenarrow exception to the preservation requirement was triggered here (see People v Avera,192 AD3d at 1383; People v Favreau, 174 AD3d at 1228). No factual allocution wasnecessary as defendant pleaded guilty to a lesser crime as part of a plea bargain and, contrary todefendant's contention, the record reveals no confusion as to the offense to which he waspleading guilty that would excuse the lack of preservation (see People v Johnson, 23 NY3d 973, 975-976 [2014]; People vMoore, 71 NY2d 1002, 1006 [1988]; People v Favreau, 174 AD3d at 1227-1228). Asfor defendant's challenge to the sentence being harsh and excessive, we find no abuse ofdiscretion or extraordinary circumstances warranting a reduction of the agreed-upon sentence inthe interest of justice (see People vWoods, 166 AD3d 1298, 1299-1300 [2018], lv denied 33 NY3d 1036[2019]).
Garry, P.J., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment [*2]is affirmed.
Footnote *:To the extent that defendantcontinues to seek certain discovery and Brady material in preparation for this appeal, healready advanced that issue in a motion to this Court that was denied (2020 NY Slip Op75579[U] [2020]), and he is precluded from revisiting the issue in his brief (see e.g. People vCollins, 238 AD2d 435, 436 [1997], lv denied 90 NY2d 903 [1997]; People vJacobs, 220 AD2d 617, 617 [1995], lv denied 87 NY2d 903 [1995]). Defendant'srelated claim involves matters outside the record and is, as a result, "more appropriately thesubject of a CPL article 440 motion" (People v Rodriguez, 195 AD3d 1237, 1242 [2021]; see People v Brown, 139 AD3d1178, 1179 [2016]).