| People v Duckett |
| 2022 NY Slip Op 03287 [205 AD3d 1229] |
| May 19, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Richard Duckett, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Fisher, J. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered February 1, 2018, convicting defendant upon his plea of guilty of the crime of murder inthe second degree.
Defendant pleaded guilty to murder in the second degree in satisfaction of an indictment thatalso charged him with criminal possession of a weapon in the second degree. The charges stemfrom defendant's admitted conduct, captured in a video recording, in intentionally shootingTerrance Roberts on June 18, 2017, causing his death. Pursuant to the plea agreement, defendantwas required to waive his right to appeal, and executed a written waiver of appeal as part of theplea allocution. County Court imposed the agreed-upon prison term of 20 years to life. Defendantappeals.
Initially, although a waiver of appeal was contemplated as a condition of the plea agreement,we agree with defendant that his appeal waiver is invalid. County Court failed to adequatelyinform defendant that the waiver of appeal was separate and distinct from the trial-related rightsthat were automatically forfeited by his guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Davis, 199 AD3d 1123,1124 [2021], lv denied 37 NY3d 1160 [2022]; see also People v Thomas, 34 NY3d 545, 561 [2019]; cf. People v Acevedo, 179 AD3d1397, 1398 [2020]). The written waiver of appeal executed by defendant was similarlydeficient (see People v LaPierre,189 AD3d 1813, 1815 [2020], lv denied 36 NY3d 1098 [2021]; cf. People v Nack, 200 AD3d1197, 1198 [2021], lv denied 38 NY3d 1009 [2022]). As such, defendant's challenge to the sentence as harsh and excessive isnot precluded (see People v Davis, 199 AD3d at 1124). However, upon review, we arenot persuaded that the authorized sentence, which is in the mid-range for this class A-1 felony(see Penal Law § 70.02 [2] [a]; [3] [a] [i]), is harsh or excessive. CountyCourt took into consideration that defendant was only 20 years old at the time of the shooting andhad no prior criminal record. However, the record reflects that defendant repeatedly shot thevictim, who was retreating, and, when the victim fell to the ground, defendant shot him in thehead, execution style. Given defendant's conduct, accurately described by the arresting officer asa "cold-blooded murder," we find no extraordinary circumstances or abuse of discretionwarranting a reduction of the agreed-upon sentence in the interest of justice (see People v Bowden, 177 AD3d1037, 1039 [2019], lv denied 34 NY3d 1157 [2020]).
Defendant's challenge to the voluntariness of his plea, based upon claims of ineffectivenessof counsel, is unpreserved for our review in the absence of evidence in the record of anappropriate postallocution motion (seePeople v Stratton, 201 AD3d 1201, 1203-1204 [2022]). Further, the narrow exception tothe preservation requirement was not implicated as the record does not disclose that defendantmade any statements during the plea colloquy[*2][FN*] or at sentencing that cast doubtupon his guilt or otherwise called into question the voluntariness of the plea (see People vLopez, 71 NY2d 662, 666 [1988]; People v Botts, 191 AD3d 1044, 1044 [2021], lv denied 36NY3d 1095 [2021]; cf. People vMox, 20 NY3d 936, 937-939 [2012]). Defendant's postplea statements during hispresentence interview, to the extent inconsistent with his plea allocution, did not obligate CountyCourt to conduct a further inquiry (seePeople v Rosario, 203 AD3d 1404, 1405 [2022]; People v Allen, 166 AD3d 1210, 1210-1211 [2018], lvdenied 32 NY3d 1201 [2019]).
Defendant's contentions that defense counsel was ineffective based upon what counseladvised or explained to him are based on matters outside the record on appeal and, as such, moreappropriately raised in a motion to vacate pursuant to CPL article 440 (see People v Linear, 200 AD3d1498, 1499 [2021], lv denied 38 NY3d 951 [2022]; People v Huebsch, 199 AD3d1174, 1176 [2021], lv denied 37 NY3d 1161 [2022]; see also People v Maffei, 35 NY3d264, 269-270 [2020]). To the extent that defendant's claims are based upon the transcript ofthe proceedings, they are either unsupported or contradicted by the record (see People vHuebsch, 199 AD3d at 1176). Were we to address them despite the lack of preservation, wewould find that defendant received a favorable plea agreement, particularly given the videorecording, and has not demonstrated that counsel lacked a strategic or other legitimateexplanation for his actions or that he was denied meaningful representation (see People v Clark, 28 NY3d 556,562-563 [2016]; People v Benevento, 91 NY2d 708, 712-713 [1998]). Defendant'sremaining claims similarly lack merit.
Aarons, J.P., Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:Although defendant expressedgeneralized dissatisfaction with counsel prior to his plea, he did not raise any "serious complaintsabout counsel" so as to warrant assigning substitute counsel; he then conferred with counsel,expressed satisfaction with his representation and proceeded with entering a guilty plea, and didnot thereafter move to withdraw his guilty plea on this ground (People v Crampton, 201 AD3d1020, 1022 [2022] [internal quotation marks and citation omitted], lv denied 37NY3d 1160 [2022]).