| People v London |
| 2017 NY Slip Op 06103 [153 AD3d 1032] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ciayan London, Appellant. |
Cappy Weiner, Kingston, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered October 8, 2014, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the third degree.
During the execution of a search warrant in an apartment where defendant resided with hisgirlfriend, a handgun was found in a locked safe in a bedroom closet and, according to police,defendant admitted that the gun belonged to him. Defendant was arrested and, following apreliminary hearing, the Town of Ulster Justice Court released him from custody, findinginsufficient evidence to hold him (see CPL 180.10 [2]). Defendant was thereafter chargedby indictment with criminal possession of a weapon in the third degree, and he subsequentlypleaded guilty to that charge pursuant to a plea agreement that also satisfied three other potentialfelony charges. In exchange, County Court promised to impose a prison term of3
Defendant's primary argument on appeal is that he was deprived of the effective assistance ofcounsel because defense counsel failed to investigate comments made off the record by thepresiding Town Justice at the end of the preliminary hearing. The issue was first raised on therecord in County Court at defendant's arraignment on the indictment, when defense counsel [*2]informed the court that the Town Justice had stated to both partiesthat she was made uncomfortable by remarks that she had overheard between the police officers.The matter was not thereafter resolved on the record. This claim of ineffective assistance ofcounsel is precluded by the valid and unchallenged appeal waiver (see People v Bryant, 28 NY3d1094, 1096 [2016]; People vSanders, 25 NY3d 337, 340-341 [2015]), in which defendant expressly waived his rightto seek appellate review of the effectiveness of his counsel prior to his guilty plea, except to theextent that it impacted upon the voluntariness of his plea (see People v Mahon, 148 AD3d 1303, 1303 [2017]; People v Oddy, 144 AD3d 1322,1323 [2016]). Even if this claim impacted the voluntariness of his plea, it is unpreserved for ourreview as defendant, after the issue of potential police misconduct was raised, pleaded guilty andnever made an appropriate postallocution motion to withdraw his plea, despite ample opportunityto do so (see CPL 220.60 [3]; People v Mahon, 148 AD3d at 1304). Nor did hemake any remarks that triggered the narrow exception to the preservation requirement (seePeople v Lopez, 71 NY2d 662, 666 [1988]). Were the issue properly before us, we wouldfind that it lacks merit, as defendant received a very favorable plea bargain and nothing in thisrecord casts doubt on the apparent effectiveness of counsel (see People v Caban, 5 NY3d 143, 152 [2005]; People v Lewis, 138 AD3d 1346,1348-1349 [2016], lv denied 28 NY3d 1073 [2016]).
Finally, to the extent that defendant relies on matters that are outside of the record on appeal,they are more properly addressed in a motion to vacate pursuant to CPL article 440 (see People v Dolberry, 147 AD3d1149, 1150-1151 [2017], lv denied 29 NY3d 1078 [June 7, 2017]). Defendant's otherclaims have been considered and determined to lack merit.
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.