| People v Tucker |
| 2018 NY Slip Op 03872 [161 AD3d 1481] |
| May 31, 2018 |
| Appellate Division, Third Department |
[*1](May 31, 2018)
| The People of the State of New York,Respondent, v Dumel Tucker, Appellant. |
Craig S. Leeds, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered January 30, 2015, convicting defendant upon his plea of guilty of the crime of robberyin the first degree.
Defendant was charged in an indictment with multiple crimes arising from an incident inwhich he entered a restaurant, displayed a firearm and forcibly stole property from employeeswho were bound with duct tape. He pleaded guilty to robbery in the first degree in satisfaction ofthe indictment and waived his right to appeal, both orally and in writing. In accordance with theterms of the plea agreement, he was sentenced to eight years in prison and five years ofpostrelease supervision, to run consecutively to a sentence that he was serving on a prior robberyconviction. Defendant appeals.
Initially, we find defendant's appeal waiver to be valid. Notably, the record discloses thatCounty Court explained the separate and distinct nature of the waiver and ascertained thatdefendant understood its consequences. Moreover, during the plea proceedings, defendant readand signed the written appeal waiver after conferring with counsel and reconfirmed hisunderstanding to County Court. Thus, the record establishes that the waiver was knowing,voluntary and intelligent, thereby precluding defendant's challenge to the severity of the sentence(see People v Taylor, 144 AD3d1317, 1318 [2016], lv denied 28 NY3d 1151 [2017]; People v Clapper, 133 AD3d 1037,1038 [2015], lv denied 27 NY3d 995 [2016]).
[*2] Defendant further contends that his guilty plea was notknowing, voluntary and intelligent because it was factually insufficient and was accepted byCounty Court without further inquiry, despite defendant's alleged protestations of innocence.Although this claim survives defendant's appeal waiver, it has not been preserved for our reviewdue to defendant's conceded failure to make an appropriate postallocution motion (see People v Evans, 156 AD3d1246, 1247 [2017]; People vBethea, 133 AD3d 1033, 1034 [2015], lv denied 27 NY3d 992 [2016]).Likewise, defendant's assertion that he was deprived of the effective assistance of counsel, to theextent that it impacts the voluntariness of his plea, is unpreserved for the same reason (seePeople v Evans, 156 AD3d at 1247; People v Bethea, 133 AD3d at 1034). We findthat the narrow exception to the preservation rule is inapplicable here as, contrary to defendant'sclaim, the record does not disclose that he asserted his innocence or otherwise made statementsthat cast doubt upon his guilt (see People v Lopez, 71 NY2d 662, 666 [1988]; Peoplev Evans, 156 AD3d at 1247). Furthermore, insofar as defendant argues in his pro sesupplemental brief that his counsel was ineffective by advising him to plead guilty withoutaccurately assessing the evidence or explaining the proof needed to secure a conviction, thisclaim concerns matters outside the record and is more properly considered in the context of aCPL article 440 motion (see People v Clapper, 133 AD3d at 1038; People v Pickett, 128 AD3d 1275,1276 [2015], lv denied 26 NY3d 930 [2015]).
McCarthy, J.P., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.