People v Blair

2016 NY Slip Op 01005 [136 AD3d 1105]

February 11, 2016

Appellate Division, Third Department

As corrected through Wednesday, March 23, 2016

[*1]

The People of the State of New York, Respondent, vNailon Blair, Also Known as Nace, Appellant.

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.

Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long ofcounsel), for respondent.

Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered August 28, 2013, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the third degree.

Following an investigation by the Attorney General's Statewide Organized CrimeTask Force, defendant and 33 others were charged in a 226-count indictment withconspiracy and other crimes related to the distribution of cocaine in several counties inthis state. Pursuant to a plea agreement that required his cooperation with theinvestigation and satisfied all 21 felony counts against him in the indictment, defendantentered a guilty plea to criminal possession of a controlled substance in the third degreeunder count 92 and waived his right to appeal. Consistent with County Court's promisethat the sentence would be capped at seven years with three years of postreleasesupervision, the court imposed a prison sentence of 61/2 years with threeyears of postrelease supervision. Defendant now appeals.

We affirm. Initially, defendant's argument that his waiver of appeal was not knowing,voluntary or intelligent is contradicted by the record, which reflects that County Courtexplained that the right to appeal was separate and distinct from the trial rightsautomatically extinguished by the guilty plea, and confirmed that defendant understoodthe waiver, had voluntarily agreed to it, and had read and signed a written waiver ofappeal after discussing it with counsel (see People [*2]v Sanders, 25NY3d 337, 340-341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Martinez, 130 AD3d1087, 1088 [2015], lv denied 26 NY3d 1010 [2015]). While defendant'schallenge to his guilty plea as involuntary survives his waiver of appeal, it was notpreserved for our review given the absence of any evidence that he raised this claim in anappropriate postallocution motion (see People v Hudson, 130 AD3d 1320, 1320 [2015]; People v Dozier, 115 AD3d1001, 1001 [2014], lv denied 24 NY3d 1083 [2014]). Moreover, the narrowexception to the preservation requirement was not triggered, as defendant made nostatements during the plea allocution that were inconsistent with his guilt or that calledinto question the voluntariness of his plea (see People v Tyrell, 22 NY3d 359, 364 [2013]; Peoplev Lopez, 71 NY2d 662, 666 [1988]; People v Guyette, 121 AD3d 1430, 1431 [2014]). In anyevent, were we to consider this claim, we would find that it is unsupported by therecord.

Defendant's allegations regarding what counsel advised him or investigated areoutside the record on appeal and, as such, are more properly the subject of a CPL article440 motion to vacate (seePeople v Trimm, 129 AD3d 1215, 1216 [2015]). Finally, defendant's contentionthat the sentence imposed, which was below the promised cap, was harsh and excessiveis foreclosed by his valid appeal waiver (see People v Lopez, 6 NY3d at 256; People v Estrada, 102 AD3d1064, 1065 [2013]).

McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.