| People v Reap |
| 2018 NY Slip Op 05375 [163 AD3d 1287] |
| July 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v David A. Reap, Appellant. |
John R. Trice, Elmira, for appellant.
Matthew VanHouten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Tompkins County (Cassidy, J.),rendered August 15, 2016, convicting defendant upon his pleas of guilty of the crimes of sexualabuse in the first degree and rape in the second degree.
Defendant was charged in an indictment with rape in the second degree and endangering thewelfare of a child. Six months later, he was charged in a superior court information with sexualabuse in the first degree. He thereafter pleaded guilty as charged in the superior court informationand to rape in the second degree in full satisfaction of the indictment and waived the right toappeal. County Court imposed the agreed-upon concurrent sentences of six months in jail,followed by 10 years of postrelease supervision. Defendant appeals.
We affirm. Contrary to defendant's contention, the plea colloquy and written appeal waiversdemonstrate that he knowingly, intelligently and voluntarily waived the right to appeal (see People v Scott, 139 AD3d1266, 1266 [2016], lv denied 27 NY3d 1155 [2016]; People v Barton, 126 AD3d 1238,1239 [2015], lv denied 26 NY3d 1142 [2016]).
Defendant's challenges to the factual sufficiency of his allocution to the rape charge and tothe voluntariness of his guilty plea to the sexual abuse charge are not preserved for our review, asthe record does not reflect that he made an appropriate postallocution motion (see People v Bailey, 158 AD3d948, 948 [2018]; People vHankerson, 147 AD3d 1153, 1153 [2017], lv denied 29 NY3d 998 [2017]).Further, defendant did not make any statements during the plea colloquy that were inconsistentwith his guilt of the rape charge or otherwise called into question the voluntariness of the plea soas to trigger the narrow exception to the preservation rule (see People v Strong, 124 AD3d 992, 992 [2015]; People v Saddlemire, 50 AD3d1317, 1318 [2008]).
The narrow exception to the preservation rule is also not applicable to the guilty plea on thesexual abuse charge, "as County Court did not accept [the] plea without further inquiry after theallocution clearly cast significant doubt upon . . . defendant's guilt or otherwisecalled into question the voluntariness of the plea" (People v Ferro, 101 AD3d 1243, 1244 [2012] [internal quotationmarks, brackets and citation omitted], lv denied 20 NY3d 1098 [2013]; see People vLopez, 71 NY2d 662, 666 [1988]). Although defendant initially indicated at the pleacolloquy that the sexual contact related to the sexual abuse charge was consensual, negating therequired element of forcible compulsion for that charge (see Penal Law§ 130.65 [1]), County Court conducted a sufficient inquiry and, after defendant wasallowed a recess to speak with counsel, he admitted that the sexual contact was not consensualand that force was involved (see Peoplev Edwards, 55 AD3d 1337, 1338 [2008], lv denied 11 NY3d 924 [2009];People v Tavares, 282 AD2d 880, 880-881 [2001], lv denied 96 NY2d 868[2001]).
Defendant's claim that his pleas were not voluntary because County Court should not haveaccepted his plea without inquiring into his mental competency to plead guilty is similarlyunpreserved for lack of an appropriate postallocution motion (see People v Hilts, 157 AD3d 1123, 1124 [2018]; People v Vandemark, 117 AD3d1339, 1340 [2014], lv denied 24 NY3d 965 [2014]). In any event, the record reflectsthat, prior to entering his pleas, defendant's competency to proceed was the subject ofproceedings under CPL article 730, resulting in County Court issuing an order of commitment onFebruary 10, 2016. On April 15, 2016, defendant was deemed no longer incapacitated and fit toproceed, and defendant made no statements during the plea proceedings "that called into questionthe voluntariness of his plea so as to alert the court of the need to inquire as to his competency orto hold a competency hearing" (People vDuffy, 126 AD3d 1142, 1142 [2015]; accord People v Hilts, 157 AD3d at1124).
Finally, defendant's contention that he was denied the effective assistance of counsel surviveshis appeal waivers to the extent it impacts the voluntariness of his pleas, but is unpreserved dueto the lack of a postallocution motion (see People v Sumter, 157 AD3d 1125, 1126 [2018]; People v Lewis, 143 AD3d 1183,1185 [2016]). Notably, his claim that counsel was ineffective for not more thoroughlyinvestigating possible defenses to the charges involves matters outside of the record and are moreproperly the subject of a CPL article 440 motion (see People v Park, 159 AD3d 1132, 1134 [2018], lv denied31 NY3d 1085 [2018]; People vShiels, 93 AD3d 992, 993 [2012]).
McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.