| People v Sanford |
| 2016 NY Slip Op 03320 [138 AD3d 1435] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBryant P. Sanford, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered June 30, 2014. The judgment convicted defendant, upon his plea of guilty, ofburglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the third degree (Penal Law § 140.20). We agree withdefendant that the waiver of the right to appeal was not valid inasmuch as the "inquirymade by [County] Court was insufficient to establish that the court engage[d] thedefendant in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice" (People v Beaver, 128 AD3d 1493, 1494 [2015] [internalquotation marks omitted]; seePeople v McCullars, 117 AD3d 1480, 1480-1481 [2014], lv denied 23NY3d 1040 [2014]). Although defendant signed a written waiver of the right to appeal,"[t]he court did not inquire of defendant whether he understood the written waiver orwhether he had even read the waiver before signing it" (People v Bradshaw, 18 NY3d257, 262 [2011]; see Peoplev Donaldson, 130 AD3d 1486, 1486-1487 [2015]; Beaver, 128 AD3d at1494). In any event, a valid waiver of the right to appeal would not preclude defendant'scontention that his plea was not knowing, intelligent and voluntary (see People v Wisniewski, 128AD3d 1481, 1481 [2015], lv denied 26 NY3d 937 [2015]), but defendantfailed to preserve that contention for our review because he did not move to withdraw theplea or to vacate the judgment of conviction (see People v Laney, 117 AD3d 1481, 1482 [2014]).Furthermore, this case does not fall within the rare exception to the preservationrequirement inasmuch as nothing in the plea colloquy casts significant doubt ondefendant's guilt or the voluntariness of the plea (see People v Lopez, 71 NY2d662, 666 [1988]; People vBrinson, 130 AD3d 1493, 1493 [2015], lv denied 26 NY3d 965[2015]).
Finally, we conclude that defendant's contentions that his attorney at the time of hisplea had a conflict of interest and that the attorney was ineffective because of thatconflict concern matters outside the record on appeal and thus must be raised by way of amotion pursuant to CPL article 440 (see People v Jackson, 108 AD3d 1079, 1079 [2013], lvdenied 22 NY3d 997 [2013]; People v Pagan, 12 AD3d 1143, 1144 [2004], lvdenied 4 NY3d 766 [2005]). Present—Smith, J.P., Carni, Lindley, Curran andTroutman, JJ.