People v Mathayo

2017 NY Slip Op 07635 [155 AD3d 1090]

November 2, 2017

Appellate Division, Third Department

As corrected through Wednesday, January 3, 2018

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The People of the State of New York, Respondent, v DengMathayo, Appellant.

Craig S. Leeds, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.

Devine, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered September17, 2013 in Albany County, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the second degree.

Defendant and two codefendants were charged in an indictment with various crimes arisingfrom the robbery of a convenience store. In satisfaction thereof, defendant pleaded guilty toattempted robbery in the second degree and waived his right to appeal. In accordance with theterms of the plea agreement, he was sentenced to 21/2 years in prison and threeyears of postrelease supervision. He now appeals.

Defendant contends that his guilty plea was not knowing, voluntary or intelligent and that hewas induced into entering it by his counsel who provided ineffective assistance. Inasmuch asthese claims implicate the voluntariness of defendant's guilty plea, they are not precluded by hiswaiver of the right to appeal, but they have not been preserved for our review as the record doesnot disclose that defendant made an appropriate postallocution motion (see People v Tetreault, 152 AD3d1081, 1082 [2017]; People vDubois, 150 AD3d 1562, 1563-1564 [2017]). Notably, the exception to the preservationrule is inapplicable as defendant did not make any statements during the plea colloquy that castdoubt upon his guilt or called into question the voluntariness of his plea (see People vLopez, 71 NY2d 662, 666 [1988]; People v Cooks, 150 AD3d 1323, 1324 [2017]). Notwithstandinghis assertions to the contrary, he did not maintain his innocence when questioned by SupremeCourt during the plea proceedings and was adequately advised of the deportation consequencesof entering a guilty plea. Therefore, we find no reason to disturb the judgment of conviction.

Garry, J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.