| People v Evans |
| 2017 NY Slip Op 09203 [156 AD3d 1246] |
| December 28, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edward Evans, Appellant. |
Michael C. Ross, Bloomingburg, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (McGinty, J.),rendered April 15, 2015, convicting defendant upon his plea of guilty of the crimes of assault inthe second degree and criminal possession of a weapon in the third degree.
In February 2013, defendant was charged in an indictment with assault in the second degreeand criminal possession of a weapon in the third degree. Following plea negotiations, severalappearances and a suppression hearing, defendant's trial commenced in February 2015. After juryselection and opening statements, defendant indicated his desire to withdraw his previouslyentered not guilty pleas, and defendant thereupon pleaded guilty to assault in the second degreeand criminal possession of a weapon in the third degree. County Court ultimately sentenced himto an aggregate prison term of five years, to be followed by five years of postrelease supervision.Defendant now appeals.
We affirm. Defendant contends that his plea was not knowing, intelligent and voluntarybecause County Court failed to advise him adequately of the trial-related rights that he wasforfeiting by pleading guilty. This claim, however, is unpreserved for our review, as there is noindication in the record that he made an appropriate postallocution motion, despite having ampleopportunity to do so prior to sentencing (see People v Conceicao, 26 NY3d 375, 381-382 [2015]; People v Golgoski, 145 AD3d1195, 1195 [2016], lv denied 28 NY3d 1184 [2017]). The absence of apostallocution motion also renders defendant's claim of ineffective assistance of counsel, to theextent that it impacts the voluntariness of his plea, unpreserved (see People v Cox, [*2]146 AD3d 1154, 1155 [2017]; People v Franklin, 146 AD3d 1082, 1084 [2017], lv denied29 NY3d 948 [2017]; People vPerkins, 140 AD3d 1401, 1402-1403 [2016], lv denied 28 NY3d 1126 [2016]).Moreover, the narrow exception to the preservation requirement is inapplicable, inasmuch as therecord does not reflect that defendant made any statements during the plea proceeding that castdoubt upon his guilt or called into question the voluntariness of his guilty plea (see People v Williams, 27 NY3d212, 219-220 [2016]; People vClark, 153 AD3d 1093, 1095 [2017], lv denied 30 NY3d 979 [2017]). Nor doesthe record reflect that defendant brought to County Court's attention any deficiency in counsel'srepresentation that would support his contention that, absent a postallocution motion, hesufficiently preserved his challenge to the voluntariness of his plea for our review (see People v Clark, 142 AD3d723, 724-725 [2016], lv denied 28 NY3d 1026 [2016]; see generally CPL470.05 [2]).
We also reject defendant's claim that the alleged delay leading up to the February 2015commencement of his trial deprived him of his constitutional right to a speedy trial (seeCPL 1.20 [17]; 30.20). While this claim survives defendant's guilty plea, it is unpreserved for ourreview, as he failed to raise such challenge before County Court or in a pretrial motion (seePeople v Lawrence, 64 NY2d 200, 203-204 [1984]; People v Gerald, 153 AD3d 1029, 1030 [2017]; see alsoCPL 170.30 [1] [e]; [2]). Were this issue properly before us, we would find it to be without meritgiven the lack of any apparent prejudice to defendant or significant delay caused by the People,and the fact that defendant was not incarcerated until after his plea allocution (see People vTaranovich, 37 NY2d 442, 445 [1975]; People v Bennett, 143 AD3d 1008, 1010 [2016]; People v Pope, 96 AD3d 1231,1233-1234 [2012], lv denied 20 NY3d 1064 [2013]).
Finally, contrary to defendant's contention, we do not find that the imposed sentence is harshor excessive. Defendant pleaded guilty to the crimes at issue with full knowledge that there wasno promise regarding sentencing. In addition, given his extensive criminal history, the violentnature of his crime and the young age of the victim, we discern no extraordinary circumstances orany abuse of discretion warranting a reduction of the sentence in the interest of justice(see CPL 470.15 [3] [c]; Peoplev Gunn, 144 AD3d 1193, 1196 [2016], lv denied 28 NY3d 1145 [2017]; People v Kuhlmann, 130 AD3d1086, 1087 [2015], lv denied 26 NY3d 1089 [2015]).
Peters, P.J., Garry, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.