| People v Austin |
| 2016 NY Slip Op 05595 [141 AD3d 956] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vChristopher Austin, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Jonathan Jirik, Law Intern), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 11, 2014, convicting defendant upon his plea of guiltyof the crime of burglary in the third degree.
In August 2012, in satisfaction of various charges against him, defendant signed anappeal waiver in open court and pleaded guilty to the crime of burglary in the thirddegree. The plea agreement contemplated that defendant would enter into the judicialdiversion program and that, if he failed to complete the program, he could face3
We affirm. Initially, we reject defendant's contention that his plea was not knowing,voluntary and intelligent because County Court failed to explain a direct consequence ofhis plea—specifically, the "specific period" that he was required to participate in"substance abuse treatment" as part of judicial diversion program (see CPL216.05 [5]; People v Monk,21 NY3d 27, 32 [2013]; People v Harnett, 16 NY3d 200, 205-206 [2011])."[I]nasmuch as the duration of his treatment regimen was not an immediate, definite orautomatic result of his guilty plea but, [*2]rather, wasfashioned by the judicial diversion program outside of County Court's control in responseto defendant's particular treatment needs and his ongoing response to that treatment, itwas a collateral consequence of his plea subject to the preservation requirement" (People v Smith, 136 AD3d1107, 1108 [2016] [internal quotation marks and citations omitted], lvdenied 27 NY3d 1075 [2016]; see People v Peque, 22 NY3d 168, 184 [2013]; Peoplev Monk, 21 NY3d at 32). To that end, defendant's challenge to the voluntariness ofhis plea was not preserved due to his failure to seek appropriate postallocution relief (see People v Labaff, 127 AD3d1471, 1471 [2015], lv denied 26 NY3d 931 [2015]; People v Disotell, 123 AD3d1230, 1231 [2014], lv denied 25 NY3d 1162 [2015]). Indeed, defendant didnot challenge the voluntariness of his plea until this appeal and after having admitted tofailing to comply with the terms of the judicial diversion program contract (seePeople v Smith, 136 AD3d at 1108; People v Donovan, 94 AD3d 1230, 1231 [2012]). Contraryto defendant's further contention, he did not make any statements during the pleacolloquy that cast doubt upon his guilt or negated an essential element of the crime so asto trigger the narrow exception to the preservation rule or obligate County Court toinquire as to a potential intoxication defense (see People v Buck, 136 AD3d 1117, 1118 n 2 [2016]; People v Pearson, 110 AD3d1116, 1116 [2013]; Peoplev Jones, 73 AD3d 1386, 1387 [2010]; People v Phillips, 30 AD3d 911, 911 [2006], lvdenied 7 NY3d 869 [2006]).
Concerning defendant's challenge to the sentence imposed, we find that the appealwaiver was knowing, voluntary and intelligent (see People v Lopez, 6 NY3d 248, 256 [2006]), and,therefore, defendant is precluded from challenging his sentence as harsh and excessive(see People v Lopez, 6 NY3d at 256; People v Jackson, 128 AD3d 1279, 1280 [2015], lvdenied 26 NY3d 930 [2015]; People v Mills, 85 AD3d 1448, 1448 [2011]; People v Sofia, 62 AD3d1159, 1160 [2009]). As for defendant's ineffective assistance of counsel claim, evenassuming such claim impacts upon the voluntariness of his plea and, hence, survives hisvalid waiver of appeal (seePeople v Clark, 135 AD3d 1239, 1240 [2016], lv denied 27 NY3d 995[2016]; People v Buswell,88 AD3d 1164, 1164 [2011]), there is no indication on this record that defendantmade an appropriate postallocution motion. Accordingly, this issue is unpreserved forour review (see People vSmalls, 128 AD3d 1281, 1282 [2015], lv denied 27 NY3d 1006 [2016];People v Broomfield, 128AD3d 1271, 1272 [2015], lv denied 26 NY3d 1086 [2015]). Even if wewere to consider defendant's contention that counsel's failure to request an enhancementhearing was error, we would find it to be without merit as County Court "was possessedof sufficient reliable and accurate information"—notably the results of a hearingheld in jail that found defendant refused a drug test—so as "to warrant impositionof [an] enhanced sentence" (People v Waite, 119 AD3d 1086, 1088 [2014]; seePeople v Outley, 80 NY2d 702, 713 [1993]). To the extent that defendant'sremaining arguments have not been specifically addressed, including his claim that hewas not provided notice of the allegations in the violation petition to which he hadalready admitted, those claims have been examined and found to be lacking in merit.
Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.