| People v Perkins |
| 2016 NY Slip Op 04744 [140 AD3d 1401] |
| June 16, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shakee Perkins, Appellant. |
Carolyn B. George, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered January 24, 2014, convicting defendant upon his plea of guilty of the crimeof burglary in the second degree.
In May 2013, defendant was indicted and charged with burglary in the second degreeand criminal mischief in the second degree. The charges stemmed from a November2012 incident wherein defendant allegedly entered a residence in the City of Albany andcaused extensive damage thereto. Thereafter, in June 2013, defendant was charged in asix-count indictment with various drug-related offenses—the most serious ofwhich was criminal sale of a controlled substance in the third degree. In September 2013,defendant pleaded guilty to a single count of burglary in the second degree—infull satisfaction of both pending indictments—and waived his right to appeal inexchange for the agreed-upon sentence of nine years in prison followed by five years ofpostrelease supervision. At defendant's request, sentencing was adjourned until after theholidays and was set down for December 30, 2013. It appears that sentencing was furtheradjourned until January 21, 2014, at which time defendant failed to appear, and CountyCourt issued a bench warrant for his arrest. Defendant was apprehended and appeared incourt three days later for sentencing. Despite defendant's failure to appear for sentencingon the appointed date, the People did not seek an enhanced sentence and, based upon thePeople's recommendation, County Court agreed to adhere to the terms of the pleaagreement. Accordingly, County Court sentenced defendant to a prison term of nineyears followed by five years of postrelease supervision. Defendant nowappeals.
[*2] Defendant readily concedes that,by pleading guilty to burglary in the second degree (a class C violent felony offense)(see Penal Law § 70.02 [1] [b]), he was not eligible for participationin the shock incarceration program (see Correction Law § 865 [1]).Defendant maintains, however, that he was denied the effective assistance of counselbecause his attorney allowed him to plead guilty to an offense that rendered himineligible for participation in that program. In other words, counsel wasineffective—defendant asserts—because he did not negotiate a plea bargainthat would have permitted defendant to plead guilty to one of the drug-related offensescharged in the June 2013 indictment. Assuming that this aspect of defendant's ineffectiveassistance of counsel claim impacts upon the voluntariness of his plea, such claimsurvives defendant's unchallenged waiver of the right to appeal but is unpreserved forour review in the absence of an appropriate postallocution motion (see People v Griffin, 134AD3d 1228, 1230 [2015]; People v Smith, 123 AD3d 1375, 1376 [2014], lvdenied 26 NY3d 935 [2015]). Further, the narrow exception to the preservation rulewas not triggered here, "as defendant did not make any statements during the pleaallocution that negated an essential element of the crime or otherwise cast doubt upon hisguilt" (People v Smith, 119AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]; see People v White, 104 AD3d1056, 1056 [2013], lv denied 21 NY3d 1021 [2013]). Defendant's relatedineffective assistance of counsel claim—that "counsel caused him to miss out on amore favorable . . . earlier plea offer"—is premised upon mattersoutside the record and, as such, is more properly the subject of a CPL article 440 motion(see generally People vToye, 107 AD3d 1149, 1152 [2013], lv denied 22 NY3d 1091[2014]).
Defendant's remaining arguments do not warrant extended discussion. The People'salleged failure to disclose a certain pretrial statement that defendant may have made tothe authorities is based entirely upon speculation. In any event, we note that "[t]heforfeiture [of rights] occasioned by a guilty plea extends to a variety of claims, includingthose premised upon a failure to provide CPL 710.30 notice" (People v Sirico, 135 AD3d19, 24 [2015]). Finally, review of defendant's claim that the agreed-upon sentenceimposed is harsh and excessive is precluded by his unchallenged appeal waiver (see People v Rapp, 133 AD3d979, 979 [2015]). Accordingly, the judgment of conviction is affirmed.
Peters, P.J., Lahtinen, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.