| People v Dutcher |
| 2017 NY Slip Op 08905 [156 AD3d 1122] |
| December 21, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jared Dutcher, Appellant. |
Marshall Nadan, Kingston, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered February 17, 2015, convicting defendant upon his plea of guilty of the crime of criminalcontempt in the first degree.
In satisfaction of various pending charges, defendant pleaded guilty to a superior courtinformation charging him with criminal contempt in the first degree and waived his right toappeal. County Court sentenced him to the agreed-upon prison term of 1
We affirm. Contrary to defendant's contention, his combined oral and written waiver of theright to appeal was knowing, intelligent and voluntary (see People v Sanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d 248,256-257 [2006]). County Court advised defendant that the right to appeal was separate from theother rights that he would forfeit upon pleading guilty. Additionally, defendant executed adetailed written waiver in open court, which he and his counsel signed, that included anexplanation that defendant was relinquishing the right to appeal and defendant's acknowledgmentthat he had discussed the waiver of the right to appeal with counsel and was voluntarily waivingthat right. County Court further confirmed that counsel had reviewed the written waiver withdefendant and that defendant understood it. Accordingly, we conclude that defendant validlywaived the right to appeal (see People vPlass, 150 AD3d 1558, 1559 [2017], lv denied 29 NY3d 1094 [2017]; People v Taylor, 144 AD3d 1317,1318 [2016], lv denied 28 NY3d 1151 [2017]). Defendant's valid waiver precludes [*2]his contention that his sentence is harsh and excessive (seePeople v Plass, 150 AD3d at 1559; People v Miller, 137 AD3d 1485, 1485 [2016]).
Although defendant did not preserve his claim of ineffective assistance of counsel by movingto withdraw his plea pursuant to CPL 220.60 (3), there is a narrow exception to the preservationrule when a defendant had no actual or practical ability to make such motion and the errorcomplained of is clear from the record (see People v Tyrell, 22 NY3d 359, 364 [2013]; People v Louree, 8 NY3d 541, 546[2007]). Here, defendant did not have the practical ability to move to withdraw his plea,inasmuch as sentencing occurred immediately after he entered his guilty plea (see People v Conceicao, 26 NY3d375, 381 [2015]; People v Tyrell, 22 NY3d at 364). However, we note thatdefendant's claims involve matters outside of the record that are properly the subject of a CPLarticle 440 motion (see People vHaffiz, 19 NY3d 883, 885 [2012]; People v Franklin, 146 AD3d 1082, 1084 [2017], lv denied29 NY3d 948 [2017]; People v Taylor, 144 AD3d at 1318-1319).
Peters, P.J., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.