| People v Williams |
| 2018 NY Slip Op 05231 [163 AD3d 1172] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Thomas Williams, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 14, 2016, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
In full satisfaction of a 10-count indictment, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree and waived his right to appeal the conviction andsentence. County Court sentenced defendant, in accordance with the plea agreement, to six yearsin prison and two years of postrelease supervision. Defendant appeals.
We reject defendant's contention that his waiver of the right to appeal was invalid. During theplea colloquy, County Court advised defendant that a waiver of appeal was a condition of theplea agreement, explained to defendant that he ordinarily retained the right to appeal and madeclear that the waiver was separate and distinct from the trial-related rights that he automaticallyforfeited by pleading guilty. Defendant acknowledged his understanding of the consequences ofthe appeal waiver and thereafter executed a written waiver in open court that outlined theconsequences of the waiver and confirmed that counsel had informed him of the legalramifications thereof. Under these circumstances, we find that the waiver of appeal was knowing,voluntary and intelligent (see People vSanders, 25 NY3d 337, 339-341 [2015]; People v Chaney, 160 AD3d 1281, 1283 [2018]; People v Turner, 158 AD3d 892,892 [2018]). The valid appeal waiver precludes defendant's challenges to the denial of hissuppression motion (see People v Sanders, 25 NY3d at 342; People v Kemp, 94NY2d 831, 833 [1999]) and the severity [*2]of his sentence (see People v Lopez, 6 NY3d 248,257 [2006]; People v Dobbs, 157AD3d 1122, 1123 [2018], lv denied 31 NY3d 983 [2018]).
Defendant's challenge to the voluntariness of his plea survives his valid waiver of appeal, butis unpreserved for our review inasmuch as the record does not reflect that defendant made anappropriate postallocution motion, despite ample opportunity to do so (see People v Williams, 27 NY3d212, 214 [2016]; People vConley, 161 AD3d 1486, 1487 [2018]; People v Wood, 161 AD3d 1447, 1448 [2018]). Even assumingthat certain postplea statements made by defendant implicated the voluntariness of his plea andtherefore triggered the narrow exception to the preservation rule (see People v Chin, 160 AD3d1038, 1039 [2018]; People vGresham, 151 AD3d 1175, 1178 [2017]), the record reflects that, at the sentencingproceeding, County Court satisfied any duty of further inquiry, after which defendant statedunequivocally that he did not wish to withdraw his plea and desired to proceed with sentencing(see People v Willard, 159 AD3d1228, 1229 [2018]; People vCase, 139 AD3d 1239, 1240 [2016], lv denied 28 NY3d 928 [2016]). In anyevent, the record fully supports the conclusion that defendant's guilty plea was knowing,voluntary and intelligent (see People vConceicao, 26 NY3d 375, 382-383 [2015]; People v Welden, 156 AD3d 1241, 1241 [2017]).
With respect to defendant's ineffective assistance of counsel claim, his assertions that defensecounsel pressured him into pleading guilty and failed to explore potential defenses implicatematters outside of the record that are more properly pursued in the context of a CPL article 440motion (see People v Pringle, 155AD3d 1085, 1086 [2017]; People vGoldston, 126 AD3d 1175, 1178 [2015], lv denied 25 NY3d 1201 [2015]; People v McGowan, 117 AD3d1202, 1202 [2014]). To the extent that the balance of this claim impacts upon thevoluntariness of defendant's plea, it is similarly unpreserved for our review in the absence of anappropriate postallocution motion (seePeople v Duggins, 161 AD3d 1445, 1446 [2018]; People v Gause, 159 AD3d 1277, 1278 [2018]). Were the issueproperly before us, we would find it to be lacking in merit given that counsel secured a veryfavorable plea bargain and nothing in the record casts doubt on the apparent effectiveness ofcounsel (see People v Caban, 5NY3d 143, 152 [2005]; People vLondon, 153 AD3d 1032, 1033 [2017]; People v Saylor, 132 AD3d 1018, 1018-1019 [2015]).
Garry, P.J., Egan Jr., Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.