| People v Dolberry |
| 2017 NY Slip Op 01025 [147 AD3d 1149] |
| February 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AndreDolberry, Appellant. |
Justin C. Brusgul, Voorheesville, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Garry, J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered March 6,2014 in Albany County, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a controlled substance in the third degree.
Pursuant to a negotiated plea agreement, and in full satisfaction of a three-count indictment,defendant pleaded guilty to attempted criminal possession of a controlled substance in the thirddegree and executed a written waiver of appeal in open court. Consistent with the terms of theplea agreement, Supreme Court imposed upon defendant, as a second felony offender, a prisonsentence of 5
Initially, contrary to defendant's contention, we find that his oral and written waiver of appealwas knowing, voluntary and intelligent (see People v Sanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d 248, 256[2006]). Supreme Court distinguished the right to appeal as "separate" and "independent" fromthe rights automatically forfeited by a guilty plea, and defendant acknowledged that he signedand understood the written appeal waiver after reviewing it and conferring with counselregarding its contents (see People vTaylor, 144 AD3d 1317, 1318 [2016]; People v Toledo, 144 AD3d 1332, 1332-1333 [2016]). Defendant'schallenge to the voluntariness of his plea survives his appeal waiver, but his claim is unpreservedfor our review in the absence of an appropriate postallocution motion (see CPL 220.60[2]; People v Williams, 27 NY3d212, 214, 219-222 [2016]; People vBlair, 136 AD3d 1105, 1106[*2][2016], lvdenied 27 NY3d 1066 [2016]), and defendant did not make any statement during the pleaallocution that triggered the narrow exception to the preservation requirement (see People vLopez, 71 NY2d 662, 666-667 [1988]).
To the extent that defendant's ineffective assistance of counsel claims raised in hissupplemental pro se brief implicate the voluntariness of his plea, such claims survive his validappeal waiver; however, these claims are not properly before us absent an appropriatepostallocution motion (see People vIslam, 134 AD3d 1348, 1349 [2015]; People v Kormos, 126 AD3d 1039, 1040 [2015]). The balance ofdefendant's ineffective assistance of counsel claims concern matters that are outside of the recordon appeal and are more appropriately addressed in a motion to vacate pursuant to CPL article 440(see People v Clark, 135 AD3d1239, 1240 [2016], lv denied 27 NY3d 995 [2016]; People v Pickett, 128 AD3d 1275,1276 [2015], lv denied 26 NY3d 930 [2015]). Defendant's contention raised in hissupplemental pro se brief challenging his status as a second felony offender is unpreserved forour review. Defendant's remaining pro se arguments concerning various pretrial matters, to theextent they are not precluded by his waiver of the right to appeal, are also unpreserved for ourreview or are barred by his guilty plea.
Egan Jr., Devine, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.