| People v Breault |
| 2017 NY Slip Op 04168 [150 AD3d 1548] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v HeatherBreault, Appellant. |
Erin C. Morigerato, Albany, for appellant.
Paul Czajka, District Attorney, Hudson (Joyce Crawford of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered April 23, 2014, convicting defendant upon her plea of guilty of the crimes of burglary inthe second degree, criminal solicitation in the third degree and petit larceny.
In exchange for the statutory minimum prison term, defendant pleaded guilty to anindictment charging her with burglary in the second degree, criminal solicitation in the thirddegree and petit larceny, and waived her right to appeal. In accordance with the plea agreement,County Court sentenced defendant to concurrent prison terms that resulted in an aggregatemaximum of 3
Initially, we agree with defendant that the waiver of the right to appeal was not valid. CountyCourt did not apprise defendant "that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d257, 264 [2011]; People vMitchell, 144 AD3d 1327, 1328 [2016]). Further, a review of the lengthy written pleaagreement—in which the waiver of the right to appeal is effectively buried—doesnot reflect that defendant initialed the section waiving her appellate rights, and, further, does notdistinguish the separate and distinct nature of the appeal waiver from the trial-related rights beingforfeited. As such, we do not find that "defendant understood the content or consequences of theappeal waiver" (People v Herbert,147 AD3d 1208, 1209 [2017] [internal quotation marks and citation omitted]; see Peoplev Bradshaw, 18 NY3d at 264).
[*2] Defendantfurther contends that she was denied the effective assistance of counsel. Defendant's claims inthis regard—including that neither of her attorneys diligently investigated the law or factssurrounding the charges, sufficiently communicated with her or advised her of applicabledefenses—primarily concern matters outside of the record and, therefore, are moreproperly the subject of a CPL article 440 motion (see People v Lewis, 143 AD3d 1183, 1185 [2016]). Defendant'sremaining assertions with respect to her claim of ineffective assistance of counsel areunpreserved as the record does not reflect that she made an appropriate postallocution motion(see id. at 1185; People vSoprano, 135 AD3d 1243, 1243 [2016], lv denied 27 NY3d 1007 [2016]; People v Smalls, 128 AD3d 1281,1282 [2015], lv denied 27 NY3d 1006 [2016]). Finally, defendant's challenge to thesentence as harsh and excessive is without merit given that she received the minimum term ofimprisonment for the violent felony offense of burglary in the second degree (see PenalLaw § 70.02 [3] [b]).
Peters, P.J., McCarthy, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.