| People v Griffith |
| 2016 NY Slip Op 01012 [136 AD3d 1114] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDushawn Griffith, Appellant. |
William T. Morrison, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the Supreme Court (McDonough, J.),rendered September 20, 2013 in Albany County, convicting defendant upon his plea ofguilty of the crime of reckless endangerment in the first degree.
Defendant was charged with a number of crimes arising from an incident in which heforced his girlfriend into his vehicle and then engaged in a high speed chase with policedown a city street. In satisfaction of these and other potential charges, he pleaded guiltyto reckless endangerment in the first degree and waived his right to appeal. In accordancewith the plea agreement, defendant was sentenced as a second felony offender to 2 to 4years in prison. He now appeals.
Defendant claims that his guilty plea was factually deficient as depravedindifference, a necessary element of the crime of reckless endangerment in the firstdegree, was not established during the plea allocution. This claim, however, is notpreserved for our review given that defendant did not make an appropriate postallocutionmotion (see People v Mayo,130 AD3d 1099, 1100 [2015]; People v Bryant, 128 AD3d 1223, 1224 [2015], lvdenied 26 NY3d 926 [2015]).[FN*] Moreover, the exception to thepreservation requirement is inapplicable inasmuch as [*2]defendant did not make any statements during the pleacolloquy that negated an essential element of the crime (see People v Mayo, 130AD3d at 1100; People vDevault, 124 AD3d 1140, 1141 [2015], lv denied 25 NY3d 989 [2015]).We note that it was not necessary for defendant to engage in a factual recitation of theelements of the crime and that his affirmative responses to the court's questions weresufficient to establish his guilt (see People v Pickett, 128 AD3d 1275, 1276 [2015], lvdenied 26 NY3d 933 [2015]; People v Hyson, 56 AD3d 890, 891 [2008], lvdenied 12 NY3d 758 [2009]).
Defendant further asserts that defense counsel misadvised him during the course ofthe proceedings and that he was, therefore, denied the effective assistance of counsel.That claim is based on advice that counsel gave outside the record and is more properlythe subject of a CPL article 440 motion (see People v Pickett, 128 AD3d at 1276;People v Goldston, 126AD3d 1175, 1178 [2015], lv denied 25 NY3d 1201 [2015]).
Garry, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Although defendantexecuted a waiver of his right to appeal, the waiver does not preclude his challenge to theguilty plea given that he was not advised of the separate and distinct nature of the rightsforfeited by the waiver and, therefore, the waiver is invalid (see People v Lopez, 6 NY3d248, 256 [2006]; People vPope, 129 AD3d 1389, 1390 [2015]).