| People v Doggett |
| 2017 NY Slip Op 00348 [146 AD3d 1172] |
| January 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Doggett, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered April 29, 2015, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.
In satisfaction of charged and uncharged accusations that he was involved in thedrug trade, defendant waived indictment and pleaded guilty to a superior courtinformation charging him with attempted criminal sale of a controlled substance in thethird degree. Defendant further waived his right to appeal from the conviction andsentence. He was sentenced, as a second felony offender, to the promised prison term offour years to be followed by two years of postrelease supervision. Defendant appeals,and we now affirm.
As an initial matter, defendant knowingly and intelligently waived his right to appeal.County Court advised defendant during the plea colloquy that, while he would ordinarilyretain the right to appeal to a higher court after pleading guilty, he would be expected togive up that right so long as the sentence imposed was the one contemplated by the pleaagreement. Defendant stated that he understood and agreed to waive his right to appeal.He then conferred with defense counsel and executed a detailed written waiver in opencourt that he acknowledged he understood. Therefore, "in view of the whole colloquy,particularly given this defendant's background, including his extensive experience withthe criminal justice system and multiple prior guilty pleas that resulted in terms of"incarceration, we find that his appeal waiver was valid (People v Sanders, 25 NY3d337, 342 [2015]; see Peoplev Lopez, 6 NY3d 248, 256-257 [2006]; People v Toledo, 144 AD3d 1332, 1332-1333[2016]).
[*2] Defendant next contends that thevoluntariness of his guilty plea was impaired by the deficient performance of defensecounsel but, while that challenge survives his appeal waiver, it is unpreserved for ourreview due to his failure to make an appropriate postallocution motion (see People v Williams, 27NY3d 212, 214 [2016]; People v Toledo, 144 AD3d at 1333). In any case, tothe extent that his claim is not belied by the record, it involves "matters that are outsidethe record on appeal, such as what counsel advised him or investigated, [that are] moreproperly raised in a motion to vacate pursuant to CPL article 440" (People v Taylor, 144 AD3d1317, 1318 [2016]; seePeople v Hughes, 134 AD3d 1301, 1302 [2015], lv denied 27 NY3d 966[2016]).
Finally, defendant's valid appeal waiver precludes him from arguing that theagreed-upon sentence was harsh and excessive (see People v Lopez, 6 NY3d at255; People v Renert, 143AD3d 1016, 1017 [2016]).
Peters, P.J., Garry, Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.