| People v Baxter |
| 2017 NY Slip Op 07008 [154 AD3d 1010] |
| October 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MichaelBaxter, Appellant. |
Stephen W. Herrick, Public Defender, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered July 9, 2015, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
In satisfaction of various pending charges, defendant pleaded guilty to a superior courtinformation charging him with attempted criminal possession of a weapon in the second degreeand waived his right to appeal. County Court sentenced defendant, a second felony offender, tothe agreed-upon prison term of three years to be followed by five years of postreleasesupervision. Defendant appeals.
We are unpersuaded by defendant's contention that the waiver of the right to appeal isinvalid. During the plea colloquy, County Court explained the separate and distinct nature of thewaiver of the right to appeal from the trial-related rights forfeited by the guilty plea. Furthermore,the record reflects that defendant, after a discussion with defense counsel, executed a writtenappeal waiver in open court and acknowledged that he understood it. In view of the foregoing,defendant knowingly, voluntarily and intelligently waived his right to appeal his conviction andsentence (see People v Hess, 150AD3d 1560, 1560 [2017]).
Although defendant's valid appeal waiver does not preclude his challenge to thevoluntariness of his plea, the record does not reflect that he preserved that challenge via anappropriate postallocution motion (seePeople v McRae, 150 AD3d 1328, 1329 [2017], lv denied [*2]29 NY3d 1093 [2017]). Defendant did not make any statementsduring the plea colloquy so as to trigger the narrow exception to the preservation requirement(see People v Lopez, 71 NY2d 662, 666 [1988]; People v Dolberry, 147 AD3d 1149, 1150 [2017], lv denied29 NY3d 1078 [2017]). Defendant's further attack upon the severity of the sentence imposed isforeclosed by the valid appeal waiver (see People v Hess, 150 AD3d at 1560).
To the extent that defendant's ineffective assistance of counsel claim implicates thevoluntariness of his plea and therefore survives the appeal waiver, such issue is also unpreservedabsent an appropriate postallocution motion (see CPL 330.30; People v Wood, 150 AD3d 1544,1545 [2017]; People v Payne, 148AD3d 1226, 1227 [2017], lv denied 29 NY3d 1084 [2017]). The remainder ofdefendant's ineffective assistance of counsel claim concerns matters outside the record thatcannot be addressed on direct appeal (see People v Clark, 135 AD3d 1239, 1240 [2016], lv denied27 NY3d 995 [2016]). Defendant's pro se arguments regarding the evidentiary sufficiency of theaccusatory instrument, as well as the sufficiency of the evidence presented, are forfeited by hisplea of guilty (see People v Cook,150 AD3d 1543, 1544 [2017]).
Peters, P.J., Egan Jr., Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.