| People v Hernandez |
| 2016 NY Slip Op 05183 [140 AD3d 1521] |
| June 30, 2016 |
| Appellate Division, Third Department |
[*1](June 30, 2016)
| The People of the State of New York, Respondent, vElliot Hernandez, Appellant. |
Salvatore Adamo, Albany, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Sullivan County(McGuire, J.), rendered January 30, 2013, convicting defendant upon his plea of guilty ofthe crime of burglary in the second degree (four counts).
In full satisfaction of all charges brought against him, defendant pleaded guilty toburglary in the second degree (four counts) and, pursuant to the terms of the negotiatedplea agreement, executed a written waiver of his right to appeal in open court. CountyCourt thereafter sentenced him to concurrent prison terms of seven years, to be followedby five years of postrelease supervision. County Court also imposed certain conditions ofdefendant's postrelease supervision, including that he avail himself of any vocationalopportunities, undergo health and drug and alcohol evaluations and follow anyrecommendations required for a positive discharge. Defendant now appeals.
Initially, contrary to defendant's contention, his waiver of the right to appeal wasvalid. The record reflects that County Court distinguished the right to appeal from therights automatically forfeited by a guilty plea, and defendant acknowledged that hesigned the written waiver after conferring with counsel regarding its contents.Accordingly, defendant's waiver of the right to appeal was knowing, intelligent andvoluntary (see People vLopez, 6 NY3d 248, 256 [2006]; People v Miller, 137 AD3d 1485, 1485 [2016]). Althoughdefendant's assertion that his guilty plea was not knowing, voluntary or intelligent is notprecluded by his waiver of appeal (see [*2]People v Burritt, 127AD3d 1433, 1434 [2015], lv denied 27 NY3d 994 [2016]; People v Guyette, 121 AD3d1430, 1431 [2014], lv denied 27 NY3d 998 [2016]), his claim is notpreserved for our review as defendant failed to make an appropriate postallocutionmotion (see People vWilliams, 27 NY3d 212, 219-220 [2016]; People v Buck, 136 AD3d 1117, 1118 [2016]). Nor diddefendant's statements during the plea allocution cast doubt upon his guilt or negate anessential element of the crimes as to trigger the narrow exception to the preservationrequirement (see People vGriffith, 136 AD3d 1114, 1114-1115 [2016]; People v Brown, 125 AD3d1049, 1049-1050 [2015]).
As to defendant's claims that he was denied the effective assistance of counsel, theysurvive his appeal waiver to the extent that they implicate the voluntariness of his guiltyplea (see People v Beverly,137 AD3d 1421, 1422 [2016]; People v Brown, 128 AD3d 1273, 1273-1274 [2015]), butdefendant did not preserve these claims for our review as there is no indication in therecord that defendant made an appropriate postallocution motion (see People v Broomfield, 128AD3d 1271, 1271-1272 [2015], lv denied 26 NY3d 1086 [2015]; People v Turner, 126 AD3d1228, 1229 [2015]; People v Guyette, 121 AD3d at 1432). With regard todefendant's claim that defense counsel refused to file a motion to withdraw defendant'sguilty plea, this claim is based on matters outside of the record and is more properly thesubject of a CPL article 440 motion (see People v Guyette, 121 AD3d at 1432;see also People v Griffith, 136 AD3d at 1115).
Given defendant's valid appeal waiver, he is foreclosed from challenging bothCounty Court's decision to deny him youthful offender status and the sentence as harshand excessive (see People vPacherille, 25 NY3d 1021, 1023-1024 [2015]; People v Lopez, 6 NY3dat 256; People v Bailey, 137AD3d 1620, 1621 [2016]; People v Roberts, 134 AD3d 1352, 1352 [2015]). Whiledefendant's challenge to the $4,000 in fines imposed survives the appeal waiver "becausethe amount of the fine[s] is not included in the terms of the plea bargain set forth in therecord" (People v Etkin, 284 AD2d 579, 580-581 [2001], lv denied 96NY2d 862 [2001]; see People vOrtiz, 104 AD3d 1202, 1203 [2013]), defendant failed to object to theimposition of a fine at sentencing or otherwise preserve his contention for our review (see People v Wingo, 103AD3d 1036, 1037 [2013], lv denied 21 NY3d 1021 [2013]; People vTrimm, 295 AD2d 640, 642 [2002], lv denied 98 NY2d 732 [2002];People v Carrillo, 257 AD2d 780, 783 [1999], lv denied 93 NY2d 967[1999]).
Finally, the People concede, and we agree, that because only the Board of Parole isauthorized to impose the conditions of a term of a postrelease supervision (seePenal Law § 70.45 [3]; Executive Law §§ 259-c [2];259-i [3], [4]; People vMonk, 21 NY3d 27, 32 [2013]; People v Curry, 123 AD3d 1381, 1383-1384 [2014], lvdenied 25 NY3d 950 [2015]), County Court erred to the extent that it imposedcertain conditions of defendant's postrelease supervision at sentencing, and thoseconditions must be stricken (see People v Curry, 123 AD3d at 1383-1384).
Peters, P.J., Garry, Rose and Mulvey, JJ., concur. Ordered that the judgment ismodified, on the law, by striking the conditions of postrelease supervision imposed aspart of the sentence; and, as so modified, affirmed.