People v Gause

2018 NY Slip Op 02216 [159 AD3d 1277]

March 29, 2018

Appellate Division, Third Department

As corrected through Wednesday, May 2, 2018

[*1]

The People of the State of New York, Respondent, v MarquisGause, Appellant.

Keeley A. Maloney, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.

Aarons, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered January 28, 2016, convicting defendant upon his plea of guilty of the crime of robberyin the first degree.

In satisfaction of a superior court information and other pending charges, defendant pleadedguilty to robbery in the first degree and waived his right to appeal. He was sentenced as a secondfelony offender, in accordance with the terms of the plea agreement, to a prison term of eightyears followed by five years of postrelease supervision. Defendant appeals.

Defendant's sole contention on appeal is that he was denied the effective assistance ofcounsel. Certain of defendant's arguments, including the extent to which defense counsel hadcontact with defendant following his arraignment, implicate matters outside of the record and aremore properly the subject of a CPL article 440 motion (see People v Santiago, 118 AD3d 1032, 1033 [2014]; People v Masso-Diaz, 107 AD3d1148, 1149 [2013]). With regard to the alleged deficiencies on the part of defense counselthat do not implicate the voluntariness of the plea, they are precluded by the unchallenged waiverof the right to appeal (People vBouck, 153 AD3d 1522, 1523-1524 [2017], lv denied 30 NY3d 1017 [2017]).To the extent that the balance of defendant's ineffective assistance claim impacts thevoluntariness of his plea, such challenges are unpreserved for our review as the record does notindicate that an appropriate postallocution motion was made (see People v Smith, 155 AD3d 1244, 1246 [2017]; People v London, 153 AD3d 1032,1033 [2017]; [*2]People v Islam, 134 AD3d 1348, 1349 [2015]).

Garry, P.J., Devine, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.