| People v Beverly |
| 2016 NY Slip Op 04743 [140 AD3d 1400] |
| June 16, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Keon Beverly, Also Known as Light,Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Jodi A. Danzig ofcounsel), for respondent.
Lynch, J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered January 11, 2011, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the third degree.
As a result of an investigation into narcotics trafficking by the Attorney General'sOrganized Crime Task Force, defendant was charged in an indictment with conspiracy inthe second degree and two counts of criminal sale of a controlled substance in the thirddegree. Pursuant to a negotiated agreement, defendant pleaded guilty to one count ofcriminal sale of a controlled substance in the third degree. He was sentenced as a secondfelony offender, in accordance with the agreement, to a seven-year prison term followedby 1
We affirm. To begin, we find that defendant knowingly and intelligently waived hisright to appeal (see People vLopez, 6 NY3d 248, 256 [2006]; see also People v Sanders, 25 NY3d 337, 340-341 [2015]).County Court thoroughly advised defendant of the constitutional rights being forfeitedupon a guilty plea (see People vTyrell, 22 NY3d 359, 365 [2013]), and then asked whether, "separate and apart,independent of the trial rights you give up by virtue of the plea, do you understand [that]the plea bargain requires that you give up your right to appeal the conviction as well asthe sentence that I will impose here?" Defendant responded in the affirmative. Thiscolloquy confirms that defendant was duly apprised of the distinction between the rightsautomatically forfeited upon a plea and the additional requirement here of an appeal[*2]waiver. Given defendant's valid appeal waiver, hischallenge to the severity of the sentence is foreclosed (see People v Lopez, 6NY3d at 256; People vClapper, 133 AD3d 1037, 1038 [2015], lv denied 27 NY3d 995[2016]).
Defendant's claims that his guilty plea was not voluntary and that counsel failed toprovide effective assistance with respect to the plea survive the appeal waiver, but werenot preserved for our review by an appropriate postallocution motion, and no statementswere made during the plea colloquy triggering the narrow exception to the preservationrequirement (see CPL 220.60 [3]; People v Lopez, 71 NY2d 662,665-666 [1988]; People vPickett, 128 AD3d 1275, 1276 [2015], lv denied 26 NY3d 933 [2015]).Recognizing as much in his brief, defendant seeks to have us vacate the plea in theinterest of justice (see CPL 470.15 [6] [a]). We are not persuaded to do so.
The majority of defendant's claims concern matters that are outside the record onappeal, such as what counsel discussed with or provided to him, and are more properlyraised in a CPL article 440 motion (see People v Taylor, 135 AD3d 1237, 1237 [2016]).Further, a review of the plea allocution demonstrates that defendant was adequatelyinformed of the plea terms and the rights that he was foregoing, that he understood theconsequences of his plea and had sufficient time to discuss the proof against him andpossible defenses with counsel. Defendant confirmed that he was pleading guilty of hisown free will and unequivocally admitted the charged conduct. Moreover, defendantexpressed satisfaction with counsel, who negotiated a favorable plea deal to a single salecount for which defendant received a sentence well below the maximum possibleconsecutive sentences if he had been convicted on each of the cocaine sales (seePenal Law §§ 70.25 [3]; 70.70 [1] [b]; [3] [b] [i]). That defendantopted to plead guilty, confirming that he had sold cocaine even though the lab test resultsmay not have been available to him, does not compromise the viability of the plea. Assuch, were these issues properly before us, we would find that they lack merit.
Lahtinen, J.P., Rose, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.