| People v Clark |
| 2016 NY Slip Op 00541 [135 AD3d 1239] |
| January 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vNahcere Clark, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (Ceresia, J.), renderedJanuary 24, 2014 in Albany County, convicting defendant upon his plea of guilty of thecrime of burglary in the second degree.
Pursuant to a negotiated agreement, defendant pleaded guilty to an indictmentcharging him with burglary in the second degree and waived his right to appeal. Thecharge stems from a residential burglary, and the plea agreement also satisfied pendingcharges against defendant related to four other residential burglaries. Under the terms ofthe agreement, Supreme Court retained the discretion to sentence defendant to a prisonterm of between six and eight years, with five years of postrelease supervision, andadvised defendant that it was making no promises regarding youthful offender treatment.At sentencing, defendant's request for youthful offender status was denied and, uponconsent of the parties, the court imposed a prison sentence of five years to be followed byfive years of postrelease supervision. Defendant appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal wasvalid. Supreme Court distinguished the right to appeal from the rights automaticallyforfeited by the plea, and defendant acknowledged that he understood and wasvoluntarily waiving this right (see People v Sanders, 25 NY3d 337, 341 [2015]; People v Lopez, 6 NY3d248, 256 [2006]). After reviewing it with counsel, defendant also signed a writtenwaiver in open court that explained the waiver and indicated that counsel had explainedit to him (see People vBradshaw, 18 NY3d 257, 266-267 [2011]).
[*2] Defendant's further challenge to the voluntariness ofhis guilty plea survives his waiver of appeal, but was not preserved for our review by anappropriate postallocution motion (see People v Guyette, 121 AD3d 1430, 1431 [2014]; People v Dozier, 115 AD3d1001, 1001 [2014], lv denied 24 NY3d 1083 [2014]). Moreover, the narrowexception to the preservation requirement is inapplicable, as the record reflects that thecourt made adequate further inquiry when defendant hesitated to admit his guilt (seePeople v Lopez, 71 NY2d 662, 666 [1988]). He then admitted that he was guilty andthat he had knowingly aided his accomplices in the burglary by acting as a lookout, andhe made no statements during that plea allocution that were inconsistent with his guilt orthat otherwise called into question the voluntariness of his plea (see People v Tyrell, 22 NY3d359, 364 [2013]; People v Guyette, 121 AD3d at 1431).
Defendant's claim that his guilty plea was involuntary due to the ineffectiveassistance of counsel primarily concerns matters that are outside the record on appeal andare more properly pursued in a motion pursuant to CPL article 440 (see People v Pickett, 128AD3d 1275, 1276 [2015], lv denied 26 NY3d 930 [2015]). To the extentthat these claims impact upon the voluntariness of his plea, they survive his appealwaiver but were not preserved by an appropriate postallocution motion (see People v Smalls, 128 AD3d1281, 1282 [2015]; Peoplev Broomfield, 128 AD3d 1271, 1272 [2015], lv denied 26 NY3d 1086[2015]). In any event, defendant received a favorable plea bargain and there is nothing inthe record to support his claim of ineffective assistance (see People v Bean, 102 AD3d1062, 1063 [2013]).
Defendant's challenge to the sentence as harsh and excessive is precluded by hisvalid appeal waiver (see People v Lopez, 6 NY3d at 256; People v Tyler, 130 AD3d1383, 1385 [2015]). Inasmuch as Supreme Court fully considered whether to grantdefendant's request for youthful offender treatment (see CPL 720.10, 720.20; People v Rudolph, 21 NY3d497, 499-501 [2013]), defendant's valid appeal waiver also precludes "his contentionthat [the] [c]ourt improperly denied him youthful offender treatment and his request thatwe exercise our interest of justice jurisdiction to grant him youthful offender status" (People v Wright, 123 AD3d1241, 1241 [2014] [internal quotation marks and citations omitted]; see People v Fate, 117 AD3d1327, 1329 [2014], lv denied 24 NY3d 1083 [2014]).
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.