| People v Smith |
| 2017 NY Slip Op 08045 [155 AD3d 1244] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyon Smith, Also Known as Keon Smith,Appellant. |
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered February 27, 2015, convicting defendant upon his plea of guilty of the crime of robberyin the second degree.
In full satisfaction of a three-count indictment, defendant pleaded guilty to one count ofrobbery in the second degree and waived his right to appeal. Although defendant subsequentlymoved—both pro se and with newly assigned counsel—to vacate his plea,defendant ultimately withdrew that motion and thereafter was sentenced in accordance with theterms of the revised plea agreement to 10 years in prison followed by five years of postreleasesupervision—said sentence to be served concurrently with the sentence defendant thenwas serving. This appeal by defendant ensued.
We affirm. To the extent that defendant's brief may be read as challenging the validity of hiswaiver of the right to appeal, we find this claim to be unpersuasive. Defendant was advised thatan appeal waiver was a condition of the plea agreement, County Court distinguished the waiverof appeal from the trial-related rights that defendant was forfeiting, defendant executed a writtenwaiver of appeal in open court and, in response to questioning by the court, defendant confirmedhis understanding of the waiver. Under these circumstances, we are satisfied that defendant'scombined oral and written appeal waiver was knowing, intelligent and [*2]voluntary (see People v Hall, 147 AD3d 1151, 1151 [2017], lv denied29 NY3d 1080 [2017]; People vDolberry, 147 AD3d 1149, 1150 [2017], lv denied 29 NY3d 1078 [2017]).
Although defendant's challenge to the voluntariness of his plea survives his valid appealwaiver (see People v McRae, 150AD3d 1328, 1329 [2017], lv denied 29 NY3d 1093 [2017]), this issue is unpreservedfor our review "given that he withdrew his motion to withdraw his guilty plea at sentencing andfailed to move to vacate the judgment of conviction" (People v Brown, 10 AD3d 801, 802 [2004], lv denied 3NY3d 739 [2004]; see People vTerenzi, 57 AD3d 1228, 1229 [2008], lv denied 12 NY3d 822 [2009]). To theextent that defendant's brief may be read as challenging the factual sufficiency of his plea, thisclaim is precluded by the valid appeal waiver and, further, is similarly unpreserved (see People v Bryant, 128 AD3d1223, 1224 [2015], lv denied 26 NY3d 926 [2015]). Moreover, the narrow exceptionto the preservation requirement was not triggered here, as defendant did not make any statementsduring the plea colloquy that cast doubt upon his guilt or otherwise called into question thevoluntariness of his plea (see People vBenson, 100 AD3d 1108, 1109 [2012]; People v Richardson, 83 AD3d 1290, 1291 [2011], lvdenied 17 NY3d 821 [2011]). Although defendant denied responsibility for the crime duringthe course of the presentence investigation, he reaffirmed his acceptance of responsibility prior tosentencing—twice indicating to County Court that he was in fact guilty of the underlyingcrime (see People v Hudson, 130AD3d 1320, 1320 [2015]; People vNeithardt, 127 AD3d 1502, 1503 [2015]). In any event, our review of the recordconfirms that defendant was aware of the terms of the plea agreement, including the length of thesentence to be imposed, and affirmatively "indicated that he had sufficient time to confer withcounsel and had not been forced into pleading guilty, [thus] belying his present claims ofcoercion or undue pressure" (People vBroomfield, 128 AD3d 1271, 1272 [2015], lv denied 26 NY3d 1086[2015]).
As for defendant's ineffective assistance of counsel claim, certain of the arguments nowadvanced—including counsel's alleged failure to adequately explore potential defenses andsufficiently explain the various options available to defendant—implicate matters outsideof the record and, as such, are more properly considered in the context of a CPL article 440motion (see People v Breault, 150AD3d 1548, 1549 [2017]; People vFranklin, 146 AD3d 1082, 1084 [2017], lv denied 29 NY3d 948 [2017]). To theextent that the balance of this claim impacts upon the voluntariness of defendant's plea, "suchclaim survives his valid appeal waiver but is unpreserved for our review in the absence of anappropriate postallocution motion" (People v Lewis, 143 AD3d 1183, 1185 [2016]). Finally, in light ofdefendant's valid appeal waiver, his challenge to the severity of his sentence is precluded (see People v Lambert, 151 AD3d1119, 1120 [2017], lv denied 29 NY3d 1092 [2017]; People v Caldwell, 148 AD3d1468, 1468 [2017]).
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.