| People v Toback |
| 2015 NY Slip Op 01204 [125 AD3d 1060] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTerrance Toback, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.). rendered June 18, 2013, convicting defendant upon his plea of guilty ofthe crime of criminal sexual act in the first degree.
In satisfaction of a five-count indictment stemming from defendant's sexual contacton two occasions with a girl under the age of 13 in 2012 when he was 22 years old,defendant entered a guilty plea to criminal sexual act in the first degree. Pursuant to theagreement, defendant waived his right to appeal and was sentenced to five years in prisonwith 15 years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's claims, his guilty plea and appeal waiver were, inall respects, knowing, voluntary and intelligent (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d248, 256-257 [2006]; People v Ford, 86 NY2d 397, 402-403 [1995];People v Fiumefreddo, 82 NY2d 536, 543 [1993]). Although his challenge to hisplea as involuntary survives the appeal waiver, it was not preserved by an appropriatepostallocution motion (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Waite, 120 AD3d1446, 1447 [2014]). Moreover, a review of the plea colloquy reflects that he wasfully apprised of the terms of the plea agreement, the rights he was relinquishing and theconsequences of his plea, and made no statements calling into question the voluntarinessof his plea or his guilt so as to implicate the exception to the preservation requirement(see People v Tyrell, 22NY3d 359, 363-364 [2013]; People v Lopez, 71 NY2d 662, 665-666[1988]). With [*2]regard to the appeal waiver, CountyCourt explained its meaning and that it was separate from the trial-related rightsautomatically forfeited by defendant's plea, and ascertained that he had reviewed it withcounsel, understood it and had no questions about it, and defendant signed a writtenwaiver in open court. This established the knowing, voluntary and intelligent nature ofdefendant's appeal waiver (seePeople v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d at256; compare People v Bradshaw, 18 NY3d at 264-265; People v Fate, 117 AD3d1327, 1328 [2014], lv denied 24 NY3d 1083 [2014]). Defendant's validappeal waiver precludes his arguments that the agreed-upon sentence was harsh andexcessive or that the plea allocution was insufficient (see People v Lopez, 6NY3d at 253, 255-256; People vMiner, 120 AD3d 1449, 1450 [2014]; People v Durham, 110 AD3d 1145, 1145 [2013]).
While defendant's ineffective assistance of counsel claim survives his appeal waiverto the extent that they implicate the voluntariness of his plea (see People v Howard, 119AD3d 1090, 1091 [2014], lv denied 24 NY3d 961 [2014]; People v Devino, 110 AD3d1146, 1147 [2013]), defendant's arguments are directed at what counsel advised him,which is not found in the record. Rather, it concerns matters outside the record andshould be raised in a postconviction motion under CPL article 440 (see People v Haffiz, 19 NY3d883, 885 [2012]; People v Fate, 117 AD3d at 1329).
Garry, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.