| People v Bolden |
| 2010 NY Slip Op 08647 [78 AD3d 1419] |
| November 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Swahiti Bolden,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 24, 2009, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal possession of aweapon in the second degree. He was thereafter sentenced, as a second violent felony offender, to theagreed-upon seven-year prison term followed by five years of postrelease supervision. Defendantappeals.
Preliminarily, we find that County Court's cursory references to a purported appeal waiver duringthe plea allocution were insufficient to give it effect. This is particularly so because the record lacks anyindication that such a waiver was a negotiated part of the plea agreement or that defendant haddiscussed the matter with counsel and understood its significance (see People v Middleton, 72 AD3d 1336, 1337 [2010]; People v Moran, 69 AD3d 1055, 1056[2010]; People v Riddick, 40 AD3d1259, 1259-1260 [2007], lv denied 9 NY3d 925 [2007]). Accordingly, we cannot agreewith the People's claim that defendant knowingly, intelligently and voluntarily waived his right to appeal(see People v Callahan, 80 NY2d 273, 280 [1992]).[*2]
Turning to defendant's arguments, his failure to move towithdraw his plea or vacate the judgment of conviction renders defendant's challenges to thevoluntariness of the plea or the factual sufficiency of his plea allocution unpreserved for our review (see People v Glynn, 73 AD3d 1290,1291 [2010]). Nor does the exception to the preservation rule apply, as defendant made no statementsduring the plea allocution that cast doubt on his guilt or tended to negate an essential element of thecrime (see People v Scitz, 67 AD3d1251, 1251 [2009]). In any event, contrary to defendant's assertion, his unequivocal affirmativeresponses to the court's questions were sufficient to establish his guilt, and the record amplydemonstrates that defendant knowingly, voluntarily and intelligently entered the plea (see People v Campbell, 66 AD3d1059, 1060 [2009]; People vQuaye, 52 AD3d 1021, 1021-1022 [2008], lv denied 11 NY3d 834 [2008]).
Defendant's claim that he was denied the effective assistance of counsel is likewise unpreservedsince he did not move to withdraw the plea or vacate the judgment of conviction (see People v Gomez, 72 AD3d 1337,1338 [2010]). Were we to review this claim, we would find it unpersuasive as the majority ofdefendant's complaints involve matters outside the record and are not properly the subject of a directappeal (see People v Brown, 68 AD3d1150, 1151 [2009]). Additionally, nothing in the record casts doubt on counsel's effectiveness (see People v Chaney, 72 AD3d 1194,1195-1196 [2010]; People v Singletary,51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741 [2008]). Indeed, defendantindicated on the record that he had sufficient time to confer with counsel and that he was satisfied withcounsel's services; moreover, counsel made appropriate pretrial motions and, most notably, negotiatedan advantageous plea that greatly reduced defendant's sentencing exposure (see People v Lewis, 69 AD3d 1232,1234-1235 [2010]).
In that regard, we find no merit to defendant's contention that the agreed-upon sentence is harshand excessive. Defendant was convicted of a class C felony and sentenced as a second violent felonyoffender; thus, there is no "legally authorized lesser sentence" (CPL 470.20 [6]; see People v Williams, 35 AD3d 971,973 [2006], lv denied 8 NY3d 928 [2007]) than the imposed seven-year prison term(see Penal Law § 70.04 [3] [b]).
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.