| People v Rayburn |
| 2017 NY Slip Op 04172 [150 AD3d 1553] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Calub L.Rayburn, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered June 9, 2015, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a controlled substance in the second degree and unlawful manufacture ofmethamphetamine in the third degree.
Defendant was charged with criminal possession of a controlled substance in the seconddegree and unlawful manufacture of methamphetamine in the third degree. During the trial onthese charges, defense counsel informed County Court that he had just been provided withcertain letters written by defendant to an individual who was present when defendant wasarrested and that one of the letters contained "very, very damning statements and admissions by[defendant]." Defense counsel further informed County Court that, on account of this newevidence, he had advised defendant that he should accept the plea agreement offer that had beenpresented to him prior to trial. Defendant thereafter pleaded guilty as charged and waived hisright to appeal. County Court subsequently sentenced defendant, as a second felony offender, toan aggregate prison term of eight years, to be followed by five years of postrelease supervision.Defendant appeals.
We affirm. Defendant's sole contention on appeal, that his plea was not knowing, intelligentand voluntary, survives his waiver of the right to appeal, but is unpreserved for our review inlight of his failure to move to make an appropriate postallocution motion (see People v [*2]Laflower, 145 AD3d 1341, 1342 [2016]; People v Taylor, 144 AD3d 1317,1318 [2016], lv denied 28 NY3d 1151 [2017]). Although defendant sent County Court aletter seeking a mistrial and to vacate his plea, County Court rejected it three weeks prior tosentencing, informing him that the letter did not constitute a proper motion to withdraw his plea,as it contained no sworn allegations of fact, no citation to case law supporting his request andthat it was not served on the People or defense counsel. At sentencing, County Court reiteratedthat defendant's letter did not constitute a motion to withdraw his plea. When given anopportunity to address County Court prior to sentencing, defendant did not make any furtherrequest to withdraw his plea and did not offer an affidavit or any other evidence in support of theissues raised in his letter. Accordingly, we conclude that defendant's challenge to thevoluntariness of his plea is not preserved for our review.[FN*] Moreover, defendant did not make anystatements during the plea allocution so as to trigger the narrow exception to the preservation rule(see People v Lopez, 71 NY2d 662, 665 [1988]).
Garry, J.P., Lynch, Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Even if defendant's letter couldbe construed as a formal motion (cf. People v Spulka, 285 AD2d 840, 840 [2001], lvdenied 97 NY2d 643 [2001]), defendant's claim is without merit inasmuch as "the court hadbefore it only the unsupported allegations of . . . defendant" (People vDixon, 29 NY2d 55, 56 [1971]).