| People v Fate |
| 2014 NY Slip Op 03880 [117 AD3d 1327] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJamil Fate, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered March 27, 2012, convicting defendant upon his plea of guilty of the crimeof attempted burglary in the second degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to a reducedcount of attempted burglary in the second degree and waived his right to appeal. Thecharges stemmed from a home invasion on December 14, 2011 in which personalproperty was stolen and sold at a nearby pawn shop. Upon his conviction, County Courtsentenced defendant, in accord with the plea agreement, to four years in prison with threeyears of postrelease supervision. Defendant appeals.
Contrary to defendant's contentions, we find that his guilty plea and appeal waiverwere, in all respects, voluntary, knowing and intelligent (see People v Brown, 14 NY3d113, 116 [2010]; People vLopez, 6 NY3d 248, 256 [2006]; People v Fiumefreddo, 82 NY2d 536,543 [1993]; People v Callahan, 80 NY2d 273, 280 [1992]). While defendant'schallenge to the voluntariness of his guilty plea survives the appeal waiver (seePeople v Seaberg, 74 NY2d 1, 10 [1989]), the record on appeal fails to reflect that itwas preserved by an appropriate postallocution motion (see People v Watson, 115AD3d 1016, 1017 [2014]), and nothing in the plea colloquy "casts significant doubtupon . . . defendant's guilt or otherwise calls into question the voluntarinessof the plea" so as to implicate the narrow exception to the preservation requirement(People v Lopez, 71 NY2d 662, 666 [1988]; see People v Wilson, 101 AD3d 1248, 1249 [2012]). In anyevent, defendant's claims that he was rushed or pressured into entering a guilty plea arebelied by the record, which reflects that County Court thoroughly reviewed the specificterms and consequences of the plea agreement and the trial-related rights he would beforgoing, ascertained defendant's understanding thereof, permitted breaks for him toconfer with counsel, and elicited that he had not been pressured or promised anything,and had been afforded sufficient time to discuss his case and the plea agreement withcounsel and others, including his mother, who was present in the courtroom. Moreover,the court separately explained the right to appeal and distinguished it from the otherrights that defendant was forgoing as a consequence of his plea, and defendant confirmedthat he understood the appeal waiver and executed a written waiver of appeal in opencourt and orally agreed to waive his appeal rights (see People v Bradshaw, 18 NY3d 257, 264-265 [2011];People v Lopez, 6 NY3d at 256-257). To the extent that defendant raisesarguments regarding what counsel advised him or investigated, they are not supported bythe record before us but, rather, concern matters outside the record and, as such, shouldbe raised in a CPL article 440 motion to vacate the judgment of conviction (see People v Haffiz, 19 NY3d883, 885 [2012]; People vMorey, 110 AD3d 1378, 1379-1380 [2013]).
Further, since County Court adhered to its sentencing commitment, defendant'schallenge to the agreed-upon sentence as harsh and excessive is precluded by his validappeal waiver (see People v Lopez, 6 NY3d at 255-256; People v Martin, 105 AD3d1266, 1267 [2013]). With regard to youthful offender treatment (see CPL720.10, 720.20), the court fulfilled its obligation by considering whether to treatdefendant as a youthful offender (see People v Rudolph, 21 NY3d 497, 499-501 [2013]; cf. People v Tyler, 110 AD3d745, 746 [2013]) and his "valid waiver of the right to appeal precludes both hisclaim that [the] [c]ourt improperly denied him youthful offender treatment. . . and his request that we exercise our interest of justice jurisdiction togrant him youthful offender status" (People v Torres, 110 AD3d 1119, 1119 [2013], lvdenied 22 NY3d 1044 [2013]). His assertion that he was promised such treatment iscontradicted by the record, which reflects that the court made no such commitment and,instead, stated that it would consider that treatment and exercise its discretion atsentencing. Defendant's remaining claims have been examined and determined to lackmerit.
Lahtinen, J.P., Stein and Rose, JJ., concur. Ordered that the judgment isaffirmed.