People v Burks

2018 NY Slip Op 05374 [163 AD3d 1286]

July 19, 2018

Appellate Division, Third Department

As corrected through Wednesday, August 29, 2018

[*1]

The People of the State of New York,Respondent, v Matthieu A. Burks, Appellant.

Brian M. Quinn, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon Eddy of counsel), forrespondent.

Mulvey, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered December 9, 2014, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.

Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with attempted criminal sale of a controlled substance in the third degree. Hepleaded guilty to this crime and waived his right to appeal. In accordance with the terms of theplea agreement, he was sentenced as a second felony offender to 31/2 years inprison to be followed by 11/2 years of postrelease supervision. Defendant nowappeals.

Initially, defendant's challenges to the voluntariness and factual sufficiency of his guilty pleahave not been preserved for our review, as the record does not disclose that he made anappropriate postallocution motion (seePeople v Muller, 159 AD3d 1232, 1233 [2018]; People v Bailey, 158 AD3d 948, 948 [2018]). For the same reason,his claim of ineffective assistance of counsel—to the extent that it impacts thevoluntariness of his plea—is also unpreserved (see People v Gause, 159 AD3d 1277, 1277 [2018]; People vMuller, 159 AD3d at 1233).^[FN*] With regard to these contentions, we find thatthe narrow exception to the preservation rule is inapplicable, as defendant did not make anystatements during the plea colloquy that cast doubt upon his guilt or called into question thevoluntariness of his guilty plea (see People v Lopez, 71 NY2d 662, 666 [1988];People v Muller, 159 AD3d at 1233). Defendant's further assertion that he wasimproperly arraigned without counsel present, in violation of CPL 180.10 (3), is also unpreservedgiven his failure to raise it before County Court (see CPL 470.05 [2]; People v Green, 48 AD3d 1056,1057 [2008], lv denied 10 NY3d 934 [2008]; see also People v Luckerson, 135 AD3d 1186, 1187 [2016]).

Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:The balance of defendant'sclaims with regard to the alleged ineffectiveness of counsel concern matters outside the recordand are more properly addressed in a CPL article 440 motion (see People v Rutigliano, 159 AD3d1280, 1281 [2018], lv denied 31 NY3d 1121 [2018]).