| People v Muller |
| 2018 NY Slip Op 01965 [159 AD3d 1232] |
| March 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ernest Muller, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered March 7, 2016, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
In April 2015, defendant pleaded guilty—in full satisfaction of a multicountindictment procured by the Attorney General—to one count of criminal sale of acontrolled substance in the third degree and was released on bail pending sentencing. While atliberty, defendant sold cocaine to another individual and, in August 2015, was indicted by anAlbany County grand jury with criminal sale of a controlled substance in the third degree. Pleanegotiations ensued and, in November 2015, defendant, who by then was facing additionalcharges, agreed to plead guilty to the August 2015 indictment in exchange for a prison term offive years—to be served consecutively to the sentence to be imposed upon his earlier drugconviction—followed by two years of postrelease supervision. The plea agreement alsorequired defendant to waive his right to appeal. Defendant thereafter pleaded guilty to one countof criminal sale of a controlled substance in the third degree and received the promisedsentence.[FN*] This appealensued.
[*2] We affirm. Defendant's challenge to thevoluntariness and/or factual sufficiency of his plea is unpreserved for our review in the absenceof an appropriate postallocution motion (see People v Leflore, 154 AD3d 1164, 1165 [2017], lvdenied 30 NY3d 1106 [2018]; People v Woods, 147 AD3d 1156, 1156-1157 [2017], lvdenied 29 NY3d 1089 [2017]; People v Hankerson, 147 AD3d 1153, 1153 [2017], lvdenied 29 NY3d 998 [2017]), as is his claim of coercion (see People v Lobaton, 140 AD3d 1534, 1535 [2016], lvdenied 28 NY3d 972 [2016]; Peoplev Hudson, 130 AD3d 1320, 1320 [2015]). Defendant's ineffective assistance of counselclaim—insofar as it implicates the voluntariness of his plea—is similarlyunpreserved for our review (see Peoplev Franklin, 146 AD3d 1082, 1084 [2017], lv denied 29 NY3d 948 [2017]; People v Guyette, 121 AD3d 1430,1431-1432 [2014], lv denied 27 NY3d 998 [2016]). Contrary to defendant's assertion, he"did not make any statements during the course of the plea colloquy that cast doubt upon his guiltor otherwise called into question the voluntariness of his plea" (People v White, 156 AD3d 1249,1250 [2017]); hence, the narrow exception to the preservation requirement was not triggered here(see People v Jones, 155 AD3d1103, 1106 [2017], lv denied 30 NY3d 1106 [2018]). To the extent that defendantargues that he was denied meaningful representation because counsel failed to adequatelyinvestigate potential defenses, pursue alternative sentencing avenues or sufficiently explaindefendant's various legal options, these claims implicate matters outside of the record and,therefore, are more properly the subject of a CPL article 440 motion (see People v Pringle, 155 AD3d1085, 1086 [2017]; People vLewis, 143 AD3d 1183, 1185 [2016]; People v Ramey, 123 AD3d 1290, 1291 [2014], lv denied25 NY3d 953 [2015]). Finally, defendant's various challenges to the sentence imposed have beenexamined and found to be lacking in merit.
Clark, Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:In the context of his plea to theindictment handed up by the Attorney General, defendant also was sentenced to five years inprison—resulting in an aggregate prison term of 10 years.