| People v White |
| 2017 NY Slip Op 06106 [153 AD3d 1041] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Aditep White, Appellant. |
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered December 19, 2014, convicting defendant upon his plea of guilty of the crime ofgrand larceny in the fourth degree.
Defendant waived indictment and pleaded guilty to grand larceny in the fourth degree,admitting that he stole credit card information that he later used to obtain property. The pleaagreement, which satisfied other potential charges, included a waiver of appeal and provided thatdefendant would be sentenced to a prison term of 1
Initially, we agree with defendant that his waiver of appeal was not valid, as neither CountyCourt (Pritzker, J.) nor the written waiver adequately conveyed "that the right to appeal isseparate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Mitchell, 144AD3d 1327, 1328 [2016]). Defendant's challenge to his guilty plea as not knowing,voluntary or intelligent was not preserved by an appropriate postallocution motion despite theopportunity to do so, and he did not say anything during the plea allocution that triggered thenarrow exception to the preservation requirement (see CPL 220.60 [3]; People v Williams, 27 NY3d 212,214, 219-220 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]; People v Hulstrunk, 147 AD3d1159, 1160 [2017]). Were the issue properly before us, we would find that the plea wasknowing, voluntary and intelligent (seePeople v Conceicao, 26 NY3d 375, 382-383 [2015]; People v Fiumefreddo, 82[*2]NY2d 536, 543 [1993]). When defendant stated during theplea proceedings that he was taking psychiatric medication and had mental health problems, thecourt engaged in a detailed inquiry in which defendant provided repeated assurances that heunderstood the proceedings, was thinking clearly and was able to proceed, establishing that hewas capable of voluntarily entering a guilty plea (see People v Woods, 147 AD3d 1156, 1157 [2017], lvdenied 29 NY3d 1089 [June 14, 2017]; People v Duffy, 126 AD3d 1142, 1142 [2015]).
Defendant's related claim that he was deprived of the effective assistance of counsel in thatcounsel should not have allowed him to plead guilty given his physical and mental healthproblems is likewise unpreserved (seePeople v Shiels, 93 AD3d 992, 992 [2012]). In any event, the plea minutes disclose thatdefendant actively participated in the proceedings, coherently answered the court's questions,exhibited an understanding of the plea terms and recalled the events surrounding the crime towhich he pleaded guilty. In addition to defendant's assurances that his psychiatric problems werenot affecting his ability to think clearly and that he understood the proceedings, nothing in therecord suggests that his ability to participate or understand was compromised. Under thesecircumstances, we cannot conclude that counsel was ineffective for failing to raise an issue as todefendant's competency or capacity to enter a voluntary plea (see People v Madison, 104 AD3d 1025, 1025 [2013]; see alsoPeople v Alexander, 97 NY2d 482, 486 [2002]; People v Ricketts-Simpson, 130 AD3d 1149, 1150-1151 [2015]).To the extent that defendant relies on matters outside the record, such as what counsel advisedhim, they are more properly the subject of a motion to vacate pursuant to CPL article 440 (see People v Hall, 147 AD3d1151, 1153 n 2 [2017], lv denied 29 NY3d 1080 [June 13, 2017]).
Finally, while the invalid appeal waiver does not preclude defendant's challenge to theagreed-upon sentence as harsh and excessive, we are unpersuaded that a reduction in the interestof justice is warranted given the absence of extraordinary circumstances or an abuse ofsentencing discretion (see CPL 470.15 [3] [c]; [6] [b]). Although County Court(McKeighan, J.) imposed the maximum sentence (see Penal Law § 70.00[2] [e]; [3] [b]), the plea agreement satisfied other pending, related charges, including a moreserious felony. Defendant's remaining claims have been examined and determined to also lackmerit.
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.