| People v Evans |
| 2018 NY Slip Op 01962 [159 AD3d 1226] |
| March 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v RobertEvans, Appellant. |
Salvatore Adamo, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gloria J. Sprague, Law Intern), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County (Loyola, J.),rendered September 9, 2015, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the fifth degree.
Defendant waived indictment and pleaded guilty to criminal possession of a controlledsubstance in the fifth degree as charged in a superior court information, pursuant to a pleaagreement that included a waiver of appeal. He was thereafter sentenced, consistent with theagreement, to a jail term of six months and ordered to pay restitution. Defendant nowappeals.
We affirm. Initially, as the People concede, defendant did not validly waive his right toappeal. While a waiver of appeal was recited by the People as a term of the plea agreement,County Court failed to engage in any related colloquy with defendant or explain the meaning ofthe right to appeal or appeal waiver, and did not ascertain that he had discussed it with counsel(see People v Lopez, 6 NY3d248, 256 [2006]; People v JosephPP., 153 AD3d 970, 971 [2017]; People v Buck, 136 AD3d 1117, 1118 [2016]). There was nowritten appeal waiver, and no further mention of it until after the sentence was imposed, whenthe court made a fleeting, belated reference to the waiver (see People v Leach, 26 NY3d 1154, 1156-1157 [2016]).Accordingly, we find that defendant did not validly waive his right to appeal (see People v Bradshaw, 18 NY3d257, 264-265 [2011]; People v Lopez, 6 NY3d at 256).
[*2] Defendant's challenge to his guilty plea as involuntary, likehis claim that he received ineffective assistance of counsel, was not preserved by a postallocutionmotion to withdraw his plea, despite an opportunity to do so (see CPL 220.60 [3]; People v Williams, 27 NY3d 212,219-222 [2016]; People v Evans,156 AD3d 1246, 1247 [2017]; People v Chaires, 150 AD3d 1326, 1327 [2017], lv denied29 NY3d 1124 [2017]). Further, the record does not reflect that defendant made any statementsthat triggered the narrow exception to the preservation requirement (see People v Lopez,71 NY2d 662, 665-666 [1988]; People vBeverly, 140 AD3d 1400, 1401 [2016], lv denied 28 NY3d 927 [2016]) orbrought to the court's attention any claimed deficiencies in counsel's representation (seePeople v Evans, 156 AD3d at 1247). In any event, his contention that he was not adequatelyadvised of the rights that were forfeited by the guilty plea is belied by the record, which reflectsthat County Court informed him of the plea terms and consequences and the rights that he wasforgoing, including the right to a jury trial and to confront witnesses (see People v Sougou, 26 NY3d1052, 1054 [2015]). Thus, were we to address this claim, we would find that defendant'splea was "a knowing, voluntary and intelligent choice among alternative courses of action" (People v Conceicao, 26 NY3d375, 382 [2015] [citation omitted]). Further, defendant's challenge to the agreed-upon jailsentence as harsh and excessive is moot, given that he served that sentence during the pendencyof this appeal (see People v Jones,139 AD3d 1237, 1238 [2016], lv denied 28 NY3d 932 [2016]; People v Cancer, 132 AD3d 1019,1020 [2015]).
To the extent that defendant's claims, including those directed at counsel's failure to file amotion to withdraw his guilty plea, are premised upon matters outside of the record on appeal,they are more properly considered in a CPL article 440 motion (see People v Pringle, 155 AD3d1085, 1086 [2017]; People v Chaires, 150 AD3d at 1327-1328).
Garry, P.J., Egan Jr., Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.