| People v Duggins |
| 2018 NY Slip Op 03771 [161 AD3d 1445] |
| May 24, 2018 |
| Appellate Division, Third Department |
[*1](May 24, 2018)
| The People of the State of New York,Respondent, v Tobby Duggins, Appellant. |
Samantha E. Koolen, Albany, for appellant, and appellant pro se.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephanie Milks of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered March 11, 2014, convicting defendant upon his guilty plea of the crime of criminal saleof a controlled substance in the third degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree (see Penal Law § 220.39 [1]). Hewas thereafter sentenced, as a second felony offender and consistent with the terms of the pleaagreement, to a prison term of six years, to be followed by three years of postrelease supervision.Defendant now appeals.
We affirm. Defendant's contention that his guilty plea was not knowingly, voluntarily andintelligently entered is unpreserved for our review as the record does not reflect that defendantmade an appropriate postallocution motion, despite the opportunity to do so prior to theimposition of his sentence (see People vWilliams, 27 NY3d 212, 214 [2016]; People v Conceicao, 26 NY3d 375, 381 [2015]; People v Young, 158 AD3d 955,956 [2018]). Further, defendant made no statements during the plea colloquy to implicate thenarrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662,666 [1988]; People v Park, 159AD3d 1132, 1133 [2018]).
Defendant's challenge to County Court's Sandoval ruling was forfeited upon entry ofhis guilty plea (see People v Sirico,135 AD3d 19, 24 [2015], lv denied 27 NY3d 1075 [2016]; [*2]Peoplev Ingram, 128 AD3d 1404, 1404 [2015], lv denied 25 NY3d 1202 [2015];People v Nichols, 277 AD2d 715, 718 [2000]; People v Emerson, 141 AD2d 924[1988]). As to defendant's ineffective assistance of counsel claim, his challenges to counsel'smotion practice were similarly forfeited by his guilty plea (see People v Rutigliano, 159 AD3d 1280, 1281 [2018]; People v Kormos, 126 AD3d1039, 1040 [2015]). To the extent that defendant's ineffective assistance of counsel claimimpacts the voluntariness of his plea, such challenge is unpreserved for our review in the absenceof an appropriate postallocution motion (see People v Decker, 159 AD3d 1190, 1192 [2018]; People vPark, 159 AD3d at 1134). We also note that certain of defendant's arguments, including thatcounsel was ineffective for failing to advise him of and pursue an entrapment defense, concernmatters outside of the record and are, thus, more properly pursued in a CPL article 440 motion(see People v Scretchen, 270 AD2d 515, 516 [2000]).
Finally, defendant's challenge to the severity of the sentence imposed is patently meritless.As County Court imposed the minimum permissible sentence (see Penal Law§ 70.70 [4] [b] [i]), such sentence cannot be considered harsh or excessive (see People v Brown, 35 AD3d957, 957 [2006], lv denied 8 NY3d 944 [2007]; People v Magar, 8 AD3d 689, 691 [2004], lv denied 3NY3d 677 [2004]).
Defendant's remaining contentions, including those raised in his supplemental pro se brief,have been considered and determined to be without merit.
McCarthy, J.P., Egan Jr., Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.